Patna High Court
Chhoti Devi @ Amrita vs The State Of Bihar on 14 August, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah, Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 224 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
RAJBALLABH PRASAD @ RAJBALLABH YADAV Son of Late Jehal
Yadav Resident of Village - Pathra English, P.S. - Mufassil, District - Nawada.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 165 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
Sulekha Devi Wife of Arun Kumar Resident of Garhpar, Professor Colony,
P.S.- Bihar, District - Nalanda.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 200 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
Radha Devi Wife of Surendra Kumar R/o village- Ramchandrapur, Shivpuri,
Talab Par, P.S- Laheri, District- Nalanda
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 218 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
2/315
======================================================
Sandeep Suman @ Pushpanjay Son of Sanjay Kumar Resident of Village -
Amar Singh Bigha, P.S.- Sare, District - Nalanda. At present resident of
Ranchi Road Patel Nagar, P.S.- Laheri, District - Nalanda
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 226 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
TUSI DEVI Wife of Sri Pramod Kumar Resident of Village - Ranisarai, P.S.-
Bakhtiyarpur, District - Patna.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 243 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
CHHOTI DEVI @ AMRITA Wife of Sandeep Suman Resident of Ranchi
Road, L.I.C. Building P.S.- Laheri, District - Nalanda
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance:
(In CRIMINAL APPEAL (DB) No. 224 of 2019)
For the Appellant/s : Mr. Surendra Singh, Sr. Advocate
Mr. Rajiv Kumar Singh, Sr. Advocate
Mr. Gopal Bohra, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 165 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
3/315
Mr. Ritwaj Raman, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 200 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Ritwaj Raman, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 218 of 2019)
For the Appellant/s : Mr. Rajesh Kumar Singh, Sr. Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 226 of 2019)
For the Appellant/s : Mr. Aaruni Singh, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 243 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Ritwaj Raman, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 14-08-2025
The aforesaid six appeals preferred under Section 374(2)
of the Code of Criminal Procedure, 1973 (hereinafter referred to
as the 'Cr.P.C.') arise out of the same judgment of conviction
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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dated 15.12.2018 and order of sentence dated 21.12.2018, passed
by the learned Special Judge (Elected Member of Parliament,
Member of Legislative Assembly and Member of Legislative
Council), Bihar, Patna (hereinafter referred to as the "Ld. Trial
Judge"), in Special Case No. 145 of 2018 (arising out of Mahila
(Nalanda) P.S. Case No. 15 of 2016) and therefore, these appeals
have been heard together and are being disposed off by the
present common judgment and order.
2. By the impugned judgment and order, the appellants have
been convicted and sentenced as under:
Cr. Appeal (DB) No. 224 of 2019
Appellant's Conviction Sentence
name under Section Imprisonment Fine In default of
(Rs.) fine
Rajballabh 376 of the IPC Life 50,000/- Six months
Prasad @
Rajballabh Imprisonment simple
Yadav
imprisonment
(herein
after 4 of the No separate X X
referred to Protection of sentence
as the Children from
Appellant Sexual Offences
No.1) Act, 2012
(hereafter
referred to as
the "POCSO
Act")
8 of the Five years 10,000/- Three months
POCSO Act rigorous simple
imprisonment imprisonment
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Cr. Appeal (DB) No. 165 of 2019
Appellant's Conviction Sentence
name under Section Imprisonment Fine In default of
(Rs.) fine
Sulekha 366A of the IPC 10 years 10,000/- 3 months simple
Devi rigorous imprisonment
(hereinafter imprisonment
referred to 376/120B of the Life 20,000/- 3 months simple
as the IPC imprisonment imprisonment
Appellant
No.2) 4 /17 of the Life 20,000/- 3 months simple
POCSO Act imprisonment imprisonment
8/17 of the 5 years rigorous 10,000/- 3 months simple
POCSO Act imprisonment imprisonment
4 of The 10 years x x
Immoral Traffic rigorous
(Prevention) imprisonment
Act, 1956
(herein after
referred to as
the Act, 1956)
5 of the Act, 10 years x x
1956 rigorous
imprisonment
Cr. Appeal (DB) No. 200 of 2019
Appellant's Conviction Sentence
name under Section
Imprisonment Fine (Rs.) In default of
fine
Radha Devi 376/120B of the Life 20,000/- 3 months simple
(herein after IPC imprisonment imprisonment
referred to
as the 4 /17 of the Life 20,000/- 3 months simple
POCSO Act imprisonment imprisonment
Appellant
No.3)
8 /17 of the 5 years rigorous 10,000/- 3 months simple
POCSO Act imprisonment imprisonment
4 of the Act, 10 years x x
1956 rigorous
imprisonment
5 of the Act, 10 years x x
1956 rigorous
imprisonment
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Cr. Appeal (DB) No. 218 of 2019
Appellant's Conviction Sentence
name under Section
Imprisonment Fine In default of
(Rs.) fine
Sandeep 4 of the Act, 10 years x x
Suman @ 1956 rigorous
Pushpanjay imprisonment
(herein after
X
referred to 5 of the Act, 10 years x
as the 1956 rigorous
Appellant imprisonment
No.4)
376/120B of the 10 years 10,000/- 3 months
IPC rigorous simple
imprisonment imprisonment
Cr. Appeal (DB) No. 226 of 2019
Appellant's Conviction Sentence
name under Section
Imprisonment Fine In default of
(Rs.) fine
Tusi Devi 4 of the Act, 10 years x x
(herein after 1956 rigorous
referred to imprisonment
as the
Appellant 5 of the Act, 10 years x x
No.5) 1956 rigorous
imprisonment
376/120B of the 10 years 10,000/- 3 months simple
IPC rigorous imprisonment
imprisonment
Cr. Appeal (DB) No. 243 of 2019
Appellant's Conviction Sentence
name under Section
Imprisonment Fine In default of
(Rs.) fine
Chhoti Devi 366A of the IPC Ten years 10,000/- Three months
@ Amrita rigorous simple
(herein after imprisonment imprisonment
referred to .
as the
4 of the Act, 10 years x x
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Appellant 1956 rigorous
No.6) imprisonment
5 of the Act, 10 years x x
1956 rigorous
imprisonment
376/120B of the Ten years 10,000/- Three months
IPC rigorous simple
imprisonment imprisonment
All the aforesaid sentences have been ordered to run
concurrently.
3. Short facts of the case are that the prosecutrix had filed a
written report on 09.02.2016 before the Officer-in-Charge,
Mahila Police Station, Biharsharif, Nalanda wherein she had
stated that she is aged about 15 years, she is resident of Village-
Sultanpur, P.S.-Rahui, District-Nalanda and at the moment she is
staying with two of her elder sisters and one younger brother in
the house of Bishundeo Kumar on rent, which is situated at
Garhpar, Professor Colony and there she resides and studies. She
has further stated that in her neighbourhood Sulekha Devi
(Appellant No.2), wife of Arun Kumar, Mohalla- Garhpar
(Professor Colony), P.S.-Biharsharif, District-Nalanda is
residing, with whom they had developed good acquaintance. On
06.02.2016at about 4 o'clock in the evening, Sulekha Devi asked the prosecutrix to come along with her to a birthday party, whereafter she asked her elder sister i.e P.W.-1, then she enquired as to where she has to go, upon which she replied- near Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 8/315 Bharao Chowk and then her sister had given permission to go. The prosecutrix had left along with Sulekha Devi and her daughter, namely Chhoti (Appellant No.6) and then she was firstly taken to Ramchandarpur Bus Stand, from where they had caught a bus to go to Bakhtiyarpur and when the prosecutrix had asked them as to where she was being taken, Sulekha Devi (Appellant No.2) told her that she would pick her mother from Bakhtiyarpur and then they would go along with her to the party. Thereafter, they reached Bakhtiyarpur where a Bolero vehicle was parked and after staying there for some time Sulekha Devi along with her mother and the prosecutrix sat in the vehicle and then they reached Giriyak in between 11.00-11.30 P.M. The prosecutrix could not read the name of the place since it was dark, whereafter she was taken to a house which was four storied, situated at Giriyak, P.S.-Biharsharif and she was made to sit there by Sulekha Devi (Appellant No.2), who then told her that one teacher would come and ask her some questions. The prosecutrix then told her that they were to go to a birthday party but instead where she has been brought, upon which Sulekha Devi (Appellant No.2) told her that Sir is a very nice person, hence she should do whatever she is saying quietly. After some time, a person came in the house, who was around 40-50 years Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 9/315 old, whose name the prosecutrix does not know and he along with Sulekha Devi (Appellant No.2) started taking liquor, whereafter she was also asked to drink, but she had objected. Outside, 4-5 persons were standing, who were keeping a watch. After, consuming liquor, Sulekha Devi (Appellant No.2) had disrobed the prosecutrix, made her lie down on the bed, caught her hand and stuffed cloth in her mouth, whereafter the person who had consumed liquor raped the prosecutrix and thereafter Sulekha Devi (Appellant No.2) had taken the prosecutrix to another room. In the morning at about 10:00 A.M., Sulekha Devi (Appellant No.2) had brought the prosecutrix along with her and dropped her at her house. The prosecutrix has also stated that when she was in the other room of the aforesaid house, she heard about exchange of money. After coming back, the prosecutrix had disclosed the entire incident to her elder sister PW-1 in the evening. After hearing about the occurrence, sister of the prosecutrix had informed her father and then her father had arrived there, who heard about the entire incident and then he has brought the prosecutrix to the police station where she is submitting her written report. The prosecutrix has also stated that she can recognize the person who had committed the aforesaid incident as also those persons who were keeping vigil, upon Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 10/315 seeing them again. The prosecutrix has prayed for taking appropriate legal action.
4. On the basis of the written report dated 09.02.2016, a Formal FIR, bearing Mahila (Nalanda) P.S. Case No. 15 of 2016 was registered on 09.02.2016 at 10.30 A.M. for the offences under Sections 376, 420, 34 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC'), Sections 4, 6, and 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act, 2012') against Sulekha Devi (Appellant No. 2), one 40-50 years old person and 4-5 other persons. Later on, vide order dated 26.02.2016 passed by the Ld. A.D.J.-1st-cum-Special Judge, MP/MLA Court, Nalanda at Bihar Sharif, Sections 366(A)/370/370(A)/212/ 120(B) of the IPC and Sections 4/5/6 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the 'Act, 1956') were added.
5. After investigation and finding the case to be true qua all the aforesaid six appellants, the police submitted charge-sheet No. 30 of 2016 on 20.04.2016 under Sections 366(A), 376, 370, 370(A), 212, 420, 109, 120(B) of the IPC, Sections 4, 8 and 17 of the POCSO Act and Sections 4, 5 and 6 of the Act, 1956, while keeping the investigation pending against accused Bishnu Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 11/315 Prasad and others. The learned Trial Court had then taken cognizance of the offences under Sections 366(A), 370, 370(A), 376, 212, 109, 420/120(B) of the IPC, Sections 4, 8 and 17 of the POCSO Act and Sections 4, 5 and 6 of the Act, 1956 against all the aforesaid six appellants vide order dated 22.04.2016. The charges were then framed by the learned Trial Court, vide order dated 06.09.2016 against the aforesaid six appellants under various provisions of law, details whereof are as under:- Cr. Appeal (DB) No. 224 of 2019
Appellant's name Charges framed under Section Rajballabh Prasad 109 IPC read with Section 376, 120(B) of the IPC, @ Rajballav Yadav Sections 4, 8, 17 of the POCSO Act, 2012 and Sections 5 and 6 of the Act, 1956 Cr. Appeal (DB) No. 165 of 2019 Appellant's name Charges framed under Section Sulekha Devi 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section 4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and
6 of the Act, 1956.
Cr. Appeal (DB) No. 200 of 2019 Appellant's name Charges framed under Section Radha Devi 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section 4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and 6 of the Act, 1956.
Cr. Appeal (DB) No. 218 of 2019 Appellant's name Charges framed under Section Sandeep Suman @ 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section Pushpanjay 4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and 6 of the Act, 1956.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 12/315 Cr. Appeal (DB) No. 226 of 2019 Appellant's name Charges framed under Section Tusi Devi 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section 4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and 6 of the Act, 1956.
Cr. Appeal (DB) No. 243 of 2019 Appellant's name Charges framed under Section Chhoti Devi @ 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section Amrita 4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and 6 of the Act, 1956.
6. The connected case, after constitution of the Special Court in light of the notification No. 2574 dated 14.03.2018, issued by the law department, was transferred from the Ld. Court of 1st Additional District and Sessions Judge-cum-Special Judge Nalanda at Biharsharif and received by the learned Special Judge (Elected Member of Parliament, Member of Legislative Assembly and Member of Legislative Council), Bihar, Patna on 04.06.2018, whereafter the same was numbered as Special Case No. 145 of 2018. During the course of trial, 22 prosecution witnesses were examined. PW-1 is the sister of the prosecutrix, PW-2 is the prosecutrix herself (victim girl), PW-3 is the sister of the victim girl, PW- 4 is the father of the victim girl, PW-5 is Rajeshwar Ram (Assistant Sub-Inspector of Police), PW-6 is Manju Yadav (Assistant Sub-Inspector of Police), PW-7 is Gandhari Devi (Sub-Inspector of Police), PW-8 is Dr. Shailendra Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 13/315 Kumar (Member of the Medical Board), PW-9 is Dr. Budha Prakash (Orthopaedic surgeon and Member of Medical Board), PW-10 Dr. Akhilesh Kumar (Dental Surgeon & Member of the Medical Board), PW-11 is Dr. Kumkum Kumari (Lady Medical officer and Member of the Medical Board), PW- 12 is Dr. Ram Kumar Prasad (Pathologist and Member of the Medical Board), PW-13 is Dr. Kumari Preeti Ranjana (Lady Medical officer and Member of the Medical Board), PW-14 is Alok Kumar (Assistant posted in the residential office of Superintendent of Police in the District Information Unit, Nalanda), PW-15 is Mridula Kumari (Investigating Officer), PW-16 is Bipin Kumar Choudhary (In-charge Director, State Photo Bureau Criminal Investigation Department, Bihar, Patna), PW-17 is Raj Kumar Bharti (Posted as Government Photograph Examiner in the office of State Photo Bureau, CID, Bihar), PW- 18 is Reshma Verma (learned Sub-Judge-IV-cum-ACJM-III, Biharsharif, who had recorded the statements of PW-1, PW-2 and PW-3 under Section 164 of the Cr.P.C.), PW-19 is Swarn Prabhat (learned Munsif-cum-J.M. 1st Class, who had recorded the statement of PW-4 under Section 164 of the Cr.P.C.), PW-20 is Devanand Kumar (Nodal Officer of Vodaphone), PW-21 is Vimal Kumar Shrivastava (Nodal Officer of Idea Cellular Ltd.) and PW- 22 is Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 14/315 Javed Akhtar (Nodal Officer of Bharti Airtel Ltd. Patna).
7. The prosecution, by way of documentary evidence, had proved the following documents, which were marked as exhibits during the course of the trial:-
Exhibits Description
Exhibit-1 Written Report (FIR)
Exhibit-1/a Signature of the Prosecutrix on the written
statement (FIR)
Exhibit-1/b Signature of PW-1 on the written report (FIR) Exhibit-1/c Signature of PW-4 on the written report (FIR) Exhibit-2 Signature of PW-1 on the earlier statement recorded under section 164 Cr.P.C.
Exhibit-2/a Signature of Prosecutrix on the earlier statement recorded under section 164 Cr.P.C.
Exhibit-3 Provisional Certificate of Matriculation of Prosecutrix.
Exhibit-2/b Statement of PW-3 recorded U/s. 164 Cr.P.C. Exhibit-2/c Signature of PW-3 on the statement recorded under section 164 Cr.P.C.
Exhibit-2/d Statement of PW-4 recorded under section 164 Cr.
PC.
Exhibit-4 Medical Report of the Prosecutrix.
Exhibit-4/a Signature of the witness Dr. Buddh Prakash on the Medical Report of the Prosecutrix.
Exhibit-4/b Signature of Dr. Akhilesh Kumar on the Medical Report of the Prosecutrix.
Exhibit-4/c Signature of Dr. Kumkum Kumari and Dr. & 4/d Kumari Prity Ranjana respectively on the Medical Report of the Prosecutrix.
Exhibit-4/e Signature of Dr. Shailendra Kumar and Civil
& 4/f Surgeon - cum - CMO respectively on the
Medical Report of the Prosecutrix.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 15/315 Exhibit-4/g Signature of the witness Dr. Ram Kumar Prasad on the Medical Report of the Prosecutrix.
Exhibit-5 Memo. 163, Form- IV, Exhibit 107/16 Dated 12.03.2016 Exhibit-5/a Initials of witness Alok Kumar on Memo. 163, Form- IV, Exhibit 107/16 Dated 12.03.2016 Exhibit-5/b Signature of Incharge Officer Jyoti Prakash on Memo. 163, Form- IV, Exhibit 107/16 dated 12.03.2016 Exhibit-6 Memo. 168, Form-IV, Exhibit 108/16 dated 01.04.2016 Exhibit-6/a Initials of witness Alok Kumar on Memo. 168, Form-IV, Exhibit 108/16 dated 01.04.2016 Exhibit-6/b Signature of A.S.P. Operation Vibhash Kumar on Memo. 168, Form- IV, Exhibit 108/16 dated 01.04.2016 Exhibit-Y to Form- IV along with CAF of 5 Mobile Numbers Y/9 in total 10 Pages Exhibit-7 Analysis Report bearing initials of witness Alok Kumar (Page No. - 107).
Exhibit-7/a, Analysis Report (Page - 108,109,110,111) 7/b,7/c,7/d Exhibit-1/d Registration order of witness Mridula Kumari on Written Report (FIR) Exhibit-8 Entire Formal FIR Exhibit-9 Search - cum - Seizure List Exhibit-10 Chart dated 16.02.2016 of Collected Articles prepared by the Forensic Expert.
Exhibit-11 Production - cum - Seizure List
Exhibit-12 Signature of the witness Mridula Kumari on the
seizure list dt. 26.2.2016 prepared by FSL team. Exhibit-13 Letter No. 220 / Photo dated 22.08.2016 issued by the State Photo Bureau CID, Bihar, Patna Exhibit-14 Signature of the IO Mridula Kumari and DIO Alok Kumar on the undertaking which has been Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 16/315 countersigned by the Incharge Director Vipin Kumar and contains his signature.
Exhibit-15 Application dt. 16.3.2016 of Witness-17 which is in his handwriting and bears his signature.
Exhibit-2/e Entire Statement of the Prosecutrix recorded under section 164 Cr.P.C.
Exhibit-2/f Entire Statement of PW-1 recorded under section 164 Cr.P.C.
Exhibit-2/g Entire Statement of PW-3 recorded under section 164 Cr.P.C.
Exhibit-2/h Entire Statement of PW-4 recorded under section 164 Cr.P.C.
Exhibit-16 Certificate submitted by the Nodal Officer, Vodafone Mobile Service under section 65 (B)(4) (C) of Indian Evidence Act.
Exhibit-17 Entire CAF of Mobile No.: 8298800821 issued by Vodafone Mobile Service Exhibit-17/a Entire CAF of Mobile No.: 8298800821 issued by Vodafone Mobile Service along with Photocopy of the Aadhar Card (Identity Card) of Tusi Devi Exhibit-18 CDR of Mobile No.: 8298800821 issued by Vodafone Mobile Service Exhibit-19 Certificate of the Nodal Officer, Idea Company submitted in respect of Mobile No.: 8651305263 under section 65- B of Indian Evidence Act.
Exhibit-19/a Certificate of the Nodal Officer, Idea Company submitted in respect of Mobile No.: 9708019722 under section 65- B of Indian Evidence Act.
Exhibit-20 CAF issued by the Idea Company against SIM No.: 89917020031197777008, Mobile No.:
8651305263 in the name of Tusi Devi.
Exhibit-20/a CAF issued by the Idea Company against SIM No.: 89917020031197777008, Mobile No.:
8651305263 in the name of Tusi Devi along with Photocopy of the Voter ID Card of Tusi Devi. Exhibit-21 CAF issued by the Idea Company against SIM Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 17/315 No.: 8991709006159197915, Mobile No.: 9708019722 in the name of Surendra Singh. Exhibit-21/a CAF issued by the Idea Company against SIM No.: 8991709006159197915, Mobile No.: 9708019722 in the name of Surendra Singh along with Photocopy of the Voter ID Card of Surendra Singh.
Exhibit-22 CDR (1-2-16 to 12-2-16) issued by Idea Company for Mobile No.: 8651305263 Exhibit-22/a CDR (1-1-16 to 12-4-16) issued by Idea Company for Mobile No.: 9708019722 Exhibit-23 Certificate of the Nodal Officer, Bharti airtel Ltd submitted under section 65 (B) of Indian Evidence Act.
Exhibit-24 CAF issued by the Bharti Airtel Company against SIM No.: 89915231100010342022, Mobile No.: 9162246321 in the name of Raj Ballabh Prasad. Exhibit-24/a CAF issued by the Bharti Airtel Company against SIM No.: 89915231100010342022, Mobile No.: 9162246321 in the name of Raj Ballabh Prasad along with Photocopy of Voter ID Card of Raj Ballabh Prasad.
Exhibit-25 CAF issued by the Bharti Airtel Company against SIM No.: 89915241000043314808, Mobile No.: 8084898313 in the name of Vishnu Kumar. Exhibit-25/a CAF issued by the Bharti Airtel Company against SIM No.: 89915241000043314808, Mobile No.: 8084898313 in the name of Vishnu Kumar along with Photocopy of Driving License (Identity Card) of Vishnu Kumar.
Exhibit-26 CAF issued by Bharti Airtel Company against SIM No.: 89915221100082271259, Mobile No.:
9801848312 in the name of Sulekha Devi.
Exhibit-26/a CAF issued by the Bharti Airtel Company against SIM No.: 89915221100082271259, Mobile No.:
9801848312 in the name of Sulekha Devi along Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 18/315 with Photo Copy of Voter ID Card of Sulekha Devi.
Exhibit-27 CAF issued by Bharti Airtel Company against SIM No.: 89915231100054674739, Mobile No.: 9162857459 in the name of Sulekha Devi. Exhibit-27/a CAF issued by the Bharti Airtel Company against SIM No.: 89915231100054674739, Mobile No.: 9162857459 in the name of Sulekha Devi along with Photo Copy of Voter ID Card of Sulekha Devi.
Exhibit-28 CDR (Total 21 Pages) issued by Bharti Airtel Company against Mobile No.: 9162246321. Exhibit-29 CDR (Total 11 Pages) issued by Bharti Airtel Company against Mobile No.: 9162857459. Exhibit-30 CDR (Total 10 Pages) issued by Bharti Airtel Company against Mobile No.: 8084898313. Exhibit-31 CDR (Total 06 Pages) issued by Bharti Airtel Company against Mobile No.: 9801848312.
Material D.V.D of Mobile and CAF
Exhibit - I
Material Memory card of Videography
Exhibit - II
Material Memory Card
Exhibit -
II/a to II/f
Material List of 07 C.D. prepared by Vipin Chaudhary.
Exhibit - III
8. During the course of trial, the learned trial court had also recorded the statement of defence witnesses. DW-1 is Umed Singh Yadav, DW-2 is Vinay Kumar Ranjan, DW-3 is Hari Shankar Singh, DW-4 is Kailash Prasad Yadav, DW-5 is Ram Ratan Singh, DW- 6 is Prashant Rai, DW- 7 is Upendra Kumar, DW- 8 is Ashok Kumar, D.W. 9 is Prakash Veer, DW-10 is Anil Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 19/315 Mehta, DW-11 is Bhante Jambudeep @ Lalan Manjhi, DW- 12 is Dinesh Kumar Akela, DW-13 is Rajesh Kumar, DW-14 is Prakash Kumar Singh and DW-15 is Rajeev Ranjan Kumar.
9. The list of exhibits marked on behalf of the defence are enumerated herein below:-
Exhibits Description
Exhibit-A. Photocopy of Search-cum-seizure list dated
13.02.2016.
Exhibit-A/1. Signature of witness Upendra Kumar on the photocopy of Search-cum-seizure list dated 13.02.2016.
Exhibit-A/2. Signature of witness Praveen Kumar on the photocopy of Search-cum-seizure list dated 13.02.2016.
Exhibit-B. Signature of witness Anil Mehta on appointment of Polling Agent 237 (for) election for Nawada. Exhibit-C to Documents issued by Public Information Officer, C/30. Nawada related to Daman Virodhi Sarvadaliya Sangharsh Morcha Nawada (Total 31 pages).
Exhibit-D to Certified copy of letter sent to District Officer- D/5. cum-Collector, Nawada (Daman Virodhi Sarvadaliya Sangharsh Morcha, Nawada) dated 2.2.12, 22.3.12, 27.3.12, 8.5.12, 19.3.12, 10.2.12 Exhibit-E Certificate filed u/s 65(B) of the Evidence Act by witness Rajesh Kumar.
Exhibit-F to All eight photographs (Material Exhibit). F/7.
Exhibit-G. 16 G.B. chip of Sand Disk Company (Material Exhibit).
Exhibit-H. Application dated 02.03.2017 filed by the Special Public Prosecutor.
Exhibit-I. Letter dated 23.01.2017 sent by Nodal Officer, Reliance Communication Limited Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 20/315 Exhibit-J to C.D.R. of Mobile No.- 7856940431 sent by J/5. Nodal Officer, Reliance Communication Limited.
(06 pages) Exhibit-K to C.D.R of Mobile No.- 9798206864 sent by Nodal K/3. Officer, Reliance Communication Limited. (04 pages) Exhibit-L to C.A.F. of Mobile No. 7856940431 sent by Nodal L/1. Officer, Reliance Communication Limited and Election Identity Card (total 2 pages) Exhibit-M. Letter dated 09.02.2017 sent by Nodal Officer, Reliance Communication Limited.
Exhibit-N. Certificate u/s 65B (4) (c) of Evidence Act, 1872 dt. 17.4.2017 submitted by Prakash Kr. Singh, Nodal Officer, Reliance Communication Limited Exhibit-O. Statement of Jitendra Kumar recorded on 19.03.2017 under Section 164 Cr.P.C.
Exhibit-P. Signature of Dr. Krishna on the photocopy of Dr. Krishna's application sent to the Under Secretary, Health Department, Bihar, Patna.
Exhibit-P/1. Signature of Dr. Krishna on the photocopy of the application dated 19.02.2016 sent by Dr. Krishna to the Principal Secretary, Health Department, Government of Bihar.
Exhibit-Q. Certified copy of the Final Report of Nawada Town P.S. Case No. 211/2006.
Exhibit-Q/1. Certified copy of Order Sheet of Nawada Town P.S. Case No. 211/2006.
Exhibit-R. Certified copy of the Order Sheet of Nawada Town P.S. Case No. 156/2010 Exhibit-R / 1. Certified copy of the Final Report of Nawada Town P.S. Case No. 156/2010.
Exhibit-S. Certified copy of Order Sheet of Nawada Town P.S. Case No. 425/2010.
Exhibit-S / 1. Certified copy of Final Form/Report of Nawada Town P.S. Case No. 425/2010.
Exhibit-T. Certified copy of Order sheet and Order of Criminal Revision No. 12/2007.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 21/315 Exhibit-U. Certified copy of Order Sheet of Nawada Mufassil P.S. Case No. 95/2004.
Exhibit-U/1. Certified copy of Final Form/Report of Nawada Mufassil P.S. Case No. 95/2004.
Exhibit-V. Certified copy of Order Sheet of Sheikhpura, Sheikhopur Sarai P.S. Case No. 16/2014.
Exhibit-V/1. Certified copy of F.I.R. of Sheikhpura, Sheikhopur Sarai P.S. Case No. 16/2014.
Exhibit-V/2. Certified copy of Final Report of Sheikhpura, Sheikhopur Sarai P.S. Case No. 16/2014.
Exhibit-W. Certified copy of Order Sheet of Hisua P.S. Case No. 194/2012.
Exhibit-W/1. Certified copy of Final Form/Report of Hisua P.S. Case No. 194/2012.
Exhibit-X. Certified copy of Order Sheet of Nardiganj P.S. Case No. 133/2015.
Exhibit-X/1. Certified copy of FIR of Nardiganj P.S. Case No. 133/2015.
Exhibit-Y. Certified copy of Final Form/Report of Nawada Town P.S. Case No. 111/2009.
Exhibit-Z to Information received under Right to Information Z/I. Act 2005 from the Office of Superintendent of Police, Nalanda vide Memo No. 1571/ र० क०, Bihar Sharif dated 22.04.2017 Exhibit-Z/II. Inspection report of Place of Occurrence. Exhibit- Copy of Summons issued against Vinod Kumar. Z/III.
Exhibit- Copy of service of summons issued against Z/IV. Surendra Kumar Upadhyay @ Surendra Pandit. Identificatio Signature of Dr. Smt. Krishna on the photocopy n Mark-X. of the letter dated 02.05.2016 sent to the Under Secretary, Health Department, Bihar, Patna (Marked for Identification).
10. Shri Surendra Singh, Senior Advocate, assisted by Shri Rajeev Kumar Singh, Senior Advocate as also Shri Gopal Bohra Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 22/315 and Shri Sumit Kumar, Advocates have appeared for the appellant of the first case, namely, Rajballabh Prasad @ Rajballabh Yadav. The learned Senior Counsel appearing for the appellant of Criminal Appeal (D.B.) No. 224 of 2019 (herein after referred to as the "appellant of the first case"), has taken us through the sequence of events as narrated by the prosecutrix in her written report dated 09.02.2016 and has then read her evidence, adduced as PW-2. It is stated that the written report filed by the prosecutrix has been scribed by PW-1 and the same has been signed by the prosecutrix, PW-1 and her father i.e. PW- 4, which is the basis of registration of the aforesaid F.I.R. in question, i.e. Mahila (Nalanda) P.S. Case No. 15 of 2016. It is submitted that the prosecutrix was sent for medical examination to Dr. Krishna on 09.02.2016, however the same has been suppressed by the prosecution and moreover, the said Dr. Krishna has also been withheld as a witness as also she has remained unexamined. Reference has been made to the medical report dated 17.02.2016, submitted by the Medical Board under the chairmanship of Civil Surgeon-cum-Chief Medical Officer, Nalanda, which had examined the prosecutrix and it has been submitted that therein no injury has been found on the private parts of the prosecutrix, the vagina is stated to have admitted two Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 23/315 fingers easily, hymen has been found to be old ruptured, no injury has been found inside the vagina and the Medical Board has opined as follows:-
"On the basis of the above physical, dental, radiological and pathological examination, the Board is of the opinion that the age of the prosecutrix is in-between 16-17 years and rape cannot be ruled out."
11. Thus, it is submitted by the learned Senior counsel for the appellant of the first case that the prosecutrix was not a virgin and was used to sexual intercourse as also no injuries have been found on her private parts. It is further submitted that Dr. Smt. Krishna, Lady Medical Officer, Sadar Hospital, Biharsharif, who is stated to have conducted the medical examination of the prosecutrix on 09.02.2016 had made a complaint before the Additional Secretary, Health Department, Bihar, Patna vide letter dated 02.05.2016, stating therein that she was being pressurized to change the medical report.
12. It is next submitted that though the police had gone to Giriyak but the house as described by the prosecutrix could not be found on 10.02.2016. On 11.02.2016, the prosecutrix is again stated to have been taken by the police party to Pathra English where the prosecutrix had identified the house of the appellant of the first case and had also found him strolling in his house, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 24/315 whom the prosecutrix had identified. It is thus submitted that it is intriguing as to why PW-15 Mridula Kumari, Town Inspector, who was though present at the said place, had not arrested the appellant of the first case, though she was bound to do so U/s. 41 of the Cr.P.C. In fact, no offence was registered at that time against the appellant of the first case, however on 14.02.2016, search and arrest warrant was obtained from the Ld. trial court by the police and then the police had left for the house of the appellant of the first case for investigation, however there is no entry about the same in the station diary at the police station. It is stated that on 17.02.2016, the Civil Surgeon had constituted a Medical Board to examine the prosecutrix, which had though found the age of the prosecutrix to be in between 16-17 years but no injuries were found either on the private parts or inside the vagina or otherwise on the body of the prosecutrix, rather the Medical Board had found that her hymen was old ruptured and her vagina admitted two fingers easily.
13. The learned senior counsel for the appellant of the first case has further stated that there is no proof of the fact that the prosecutrix is below 18 years of age, hence the provisions of the POCSO Act are not applicable. It is also stated that medical evidence negates the case of the prosecution and there is no Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 25/315 proof of commission of rape of the prosecutrix by the appellant of the first case. It is submitted that the conviction of the appellant of the first case is based on the solitary testimony of the prosecutrix, which is neither credible nor trustworthy and full of contradictions, improbabilities and omissions as also is contrary to the medical evidence on record. Thus, it is submitted that in case this Court holds that sexual intercourse had taken place in between the prosecutrix and the appellant of the first case, then it would be a natural corollary that the prosecutrix was a consenting party. It is next submitted that evidence has also been led by the defence to show that the appellant of the first case was not present in the aforesaid house (place of occurrence) in between 11:30 P.M. to 4:00 A.M. of the intervening night of 06/7.02.2016, thus the plea of alibi of the appellant of the first case in the present case would also be a relevant consideration.
14. Now, coming to the provisional certificate of the prosecutrix dated 29.05.2016, issued by the Bihar School Examination Board, Patna regarding the Secondary School Examination, 2016, which has been produced by the prosecution during the course of trial and has been marked as Exhibit-3, wherein the date of birth of the prosecutrix has been shown to be 04.01.2000, it is submitted that since the said document was Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 26/315 marked as Exhibit with objection, the same was required to be proved by its maker, however neither the maker of the said certificate has proved the same nor the signature put over the said certificate has been proved, thus the said document is required to be excluded and cannot be considered by this Court. In this regard, reference has been made to a judgment rendered by the Hon'ble Apex Court in the case of Narbada Devi Gupta vs. Birendra Kumar Jaiswal and Anr., reported in (2003) 8 SCC 745 to submit that the Hon'ble Apex Court has held in paragraph no. 16 thereof that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents and its execution has to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the fact in issue. Reference has also been made to a judgment rendered by the Hon'ble Apex Court in the case of Neeraj Dutta vs. State (Government of NCT Delhi), reported in AIR 2023 SC 330 to submit that the Hon'ble Apex Court has held in paragraph no. 60 thereof that when a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Indian Evidence Act and mere production and marking of a document as an exhibit by the Court cannot be held to be due Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 27/315 proof of its contents as also its execution has to be proved by admissible evidence. In this connection, reference has also been made to a judgment rendered by the Hon'ble Apex Court in the case of H. Venkatachala Iyengar vs. B.N. Thimmajamma & others, reported in AIR 1959 SC 443 to submit that the Hon'ble Apex Court has held in paragraph no. 18 thereof that under Section 67 of the Indian Evidence Act, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his hand writing and for proving such a hand writing U/s. 45 and 47 of the Indian Evidence Act, the opinion of experts and of persons acquainted with the hand writing of the person concerned are relevant.
15. The learned senior counsel for the appellant of the first case has next contended that the first and foremost requirement for application of POCSO Act is that the alleged victim was a child below 18 years of age on the date of occurrence and it is the prosecution which is required to prove the minority of the victim for application of POCSO Act qua the accused/ appellants. The prosecution is required to prove the foundational facts of the alleged offence to raise presumption under Sections 29 and 30 of the POCSO Act. It is submitted by referring to a judgment dated 30.10.2024 rendered by the learned Division Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 28/315 Bench of this Hon'ble Court in Criminal Appeal (DB) No. 550 of 2021, that the procedure provided for determination of age of a juvenile/child in conflict with law should be adopted for determination of the age of the victim of a crime also, because there is hardly any difference insofar as the issue of minority is concerned between the child in conflict with law and the child who is the victim of a crime. In this connection, reference has also been made by the learned senior counsel to a landmark judgment rendered by the Hon'ble Apex Court in the case of Jarnail Singh vs. State of Haryana, reported in (2013) 7 SCC 263 as also to the one rendered by the Hon'ble Apex Court in the case of P. Yuvaprakash vs. State, reported in (2023) SCC online SC 846, wherein Section 34 of the POCSO Act and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter referred to as the "JJ Act") has been discussed. It is thus submitted that in the present case since the age certificate of the prosecutrix i.e. the provisional certificate issued by the Bihar School Examination Board, Patna has not stood proved on account of the reasons mentioned herein above and since the requirement of law for proving the same have not been complied with, the only other way to determine the age of the prosecutrix is ossification test.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 29/315
16. As far as the present case is concerned, neither there is any proof that the x-ray plates of the prosecutrix were produced before the Medical Board, especially those pertaining to the prosecutrix nor the prosecutrix has anywhere said that her x-rays were taken, thus the fact is that no ossification test of the prosecutrix was ever conducted. In this regard, the evidence of PW-8 Dr. Shailendra Kumar has been referred to, wherein he has stated that x-ray was done by I.G.E.M.S, Biharsharif on 09.02.2016, the day on which the prosecutrix was examined by Dr. Krishna. Evidence of P.W. 9 Dr. Budha Prakash, Orthopedic Surgeon, has also been referred to and it has been submitted that he has categorically stated that ossification test had not taken place. Even otherwise it is submitted that the Medical Board has found the age of the prosecutrix to be in between 16 to 17 years, however, it is a settled principle of law that radiological examination leaves a margin of two years on either side of the age range. In this connection, reference has been made to a judgment rendered by the Hon'ble Apex Court in the case of Vinod Katara vs. The State of Uttar Pradesh, reported in AIR 2022 SC 4771 to contend that the Hon'ble Apex Court has held in paragraph no. 58 thereof that bone ossification test is not an exact science that can provide us with the exact age of the person Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 30/315 and the individual characteristic such as the growth rate of bones and skeletal structure can affect the accuracy of this method, hence the ossification test is not conclusive for age determination because it does not reveal the exact age of the person but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. Thus, it is submitted that in the present case if two years are added to either 16 or 17, the prosecutrix would definitely be a major. In this connection, reference has been made to the report of Medical Board dated 17.02.2016 to submit that x-ray of both the wrist, joint (AP view) shows that epiphyses is in the process of fusion whereas x-ray of both elbow joint (AP view), knee joint (AP view) shows that all epiphyses are fused, however, upon examination of x-ray of pelvis, iliac crest appears to have not been fused. Thus, it is submitted that the same would also show that the prosecutrix is more than 19 years of age. Therefore, it is the submission of the learned senior counsel for the appellant of the first case that in absence of any proof that the prosecutrix is below the age of 18 years, the provisions of the POCSO Act would not apply. The learned senior counsel for the appellant of the first case has further submitted that the medical Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 31/315 evidence i.e. the report of the Medical Board dated 17.02.2016 completely rules out the possibility of rape.
17. Now, coming to the evidence of the prosecutrix, it is submitted by the learned senior counsel for the appellant of the first case that though it is a settled law that in a case of rape, the evidence of a prosecutrix is of the same value as that of an injured witness and conviction can be made on the basis of the sole testimony of the prosecutrix, however it is equally a well settled law that the Courts have to be extremely careful while examining the sole testimony of the prosecutrix and in case the same inspires confidence in the mind of the Court, the accused can be convicted on the basis of sole testimony of the prosecutrix, however if the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix. In this connection, reliance has been placed on a judgment rendered by the Hon'ble Apex Court in the case of Manak Chand @ Mani vs. The State of Haryana, reported in AIR 2023 SC 5600. It is also submitted that in case medical evidence does not support the case of the prosecution relating to offence of rape, the sole testimony of the prosecutrix ought to be Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 32/315 discarded. Reliance in this connection has been made to a judgment rendered in the case of Sham Singh vs. State of Haryana, reported in AIR 2018 SC 3976.
18. The learned senior counsel for the appellant of the first case has next referred to the written report of the prosecutrix dated 09.02.2016 to submit that the same has been exhibited as Exhibit-1, which has been written by PW-1 and signed by the prosecutrix and her father as also to the evidence of PW-2 i.e. the prosecutrix, especially paragraphs no. 10 to 38, 43 and 49 to 57 thereof, to demonstrate that there are material contradictions and inconsistencies in the testimony of PW-2, thus the same is untruthful and not liable to be relied upon. The testimony of PW- 1, PW-2 and PW-3 has also been referred to by the learned senior counsel for the appellant of the first case to show that the conduct of the said three girls would demonstrate that either the prosecutrix had not left the house or she had ventured out for the purposes of engaging in prostitution.
19. The learned senior counsel for the appellant of the first case has also referred to the evidence of PW-15 Mridula Kumari, i.e. the Investigating Officer of the present case and it has been submitted that she has stated in her cross-examination that no entry was made in the station diary while leaving or coming Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 33/315 back to the police station as also at the time of inspecting the place of occurrence. In fact in paragraph no. 73 of her cross- examination, PW-15 has stated that on 12.2.2016 she had received the medical examination report issued by Dr. Krishna upon examining the prosecutrix on 09.02.2016, which has been mentioned in the case diary and it has been stated therein that x- ray has been handed over to the police but along-with the medical report no x-ray plate was given to her, hence she had made a complaint before the lady doctor, whereafter she had perused the said medical report, wherein it has been stated that there is no evidence of forceful sexual intercourse and the doctor had found the victim to be used to sex. Thus, it is submitted that there is no medical evidence available on record to suggest that rape was committed with the prosecutrix.
20. The learned senior counsel for the appellant has next referred to paragraph no. 82 of the cross-examination of PW-15 to submit that PW-15 had interrogated the appellant of the first case, wherein he had said that on 06.02.2016 at about 10:41 P.M. in the night he had gone to the TMC Guest House where Manager of the said guest house namely Umed Singh Yadav, his brother-in-law, namely Vinay Kumar Ranjan and I.A.S. Officer of the State of Jharkhand, namely Manoj Kumar were present Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 34/315 and there meeting had continued for two hours, whereafter at about 12:45 A.M. in the night, he had gone to Nawada and after half an hour he had reached at Barahgania pyne (big drain) and remained there for half an hour for the purposes of supervising cleaning of the drain, whereupon he had reached the old guest house via old jail where also he had stayed for half an hour and had met one Surendra Pandit and then in the morning at about 5:00 A.M. he had returned back to his residence at Pathra English. Thus, it is submitted by the learned senior counsel that admittedly the appellant of the first case was not present in the intervening night of 06/07.2.2016 at Pathra English, hence there was no question of having committed rape with the prosecutrix.
21. The learned senior counsel for the appellant of the first case has submitted that though on 11.02.2016 itself the prosecutrix had recognized the appellant of the first case taking a stroll in his house as also had recognized the house in question where the aforesaid incident had taken place but the police had neither made any effort to arrest him from the spot or thereafter as also had not obtained arrest warrant immediately, although it is mandatory for the police to have arrested the appellant of the first case on 11.02.2016 itself under Section 41 of the Cr.P.C. It is thus submitted that the failure on the part of the police to take Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 35/315 any step to arrest or cause the arrest of the accused at the earliest without any explanation makes the case of the prosecution doubtful. In this connection, reference has been made to a judgment rendered by the Hon'ble Apex Court in the case of Mohanlal Gangaram Gehani vs. State of Maharastra, reported in AIR 1982 SC 839 and the one rendered in the case of State of UP vs. Sukhbasi & Ors., reported in AIR 1985 SC 1224. Thus, summing up the submissions on behalf of the appellant of the first case, the learned senior counsel for the appellant of the first case has submitted that; firstly the prosecutrix was not below the age of 18 years, hence POCSO Act will not be applicable in the present case; secondly no medical evidence is on record to show that sexual intercourse had taken place in between the prosecutrix and the appellant of the first case; thirdly if at all any sexual intercourse had taken place, it had taken place with the consent of the prosecutrix; fourthly though the prosecutrix had identified the appellant of the first case on 11.02.2016, but he was not arrested, hence a false case has been set up; fifthly the appellant of the first case has a cast iron of plea of alibi and lastly the Investigating Officer has not carried out the investigation properly. It is also submitted that PW-7 and PW- 15 have though stated in paragraphs no. 10 & 62 that they had Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 36/315 used the police vehicle, after calling for the same from the police line, for the purposes of investigation on 10/11.2.2016, however it is the submission of the learned senior counsel for the appellant of the first case by referring to Defence Exhibit No. Z and Z/1 (R.T.I information obtained from the police line) that in between 09.02.2016 to 16.02.2016, no vehicle was given for conducting investigation of the present case.
22. The learned counsel appearing for the appellants of the second case, namely Sulekha Devi (herein after referred to as the Appellant No.2), third case namely Radha Devi (herein after referred to as the Appellant No.3) and sixth case, namely Chhoti Devi @ Amrita (herein after referred to as the Appellant No.6), Mr. Ajay Kumar Thakur, assisted by Mrs. Vaishnavi Singh, Mr. Ritwik Thakur and Mr. Ritwaj Raman, learned counsels has at the outset, though adopted the arguments made by the learned senior counsel appearing for the appellant of the first case but has in addition stated that a bare perusal of the C.D.R. (call detail records) of the mobile of the appellant No. 2 would show that the tower location was found to be at Bakhtiyarpur and neither at Nalanda nor at Nawada and in this connection, the evidence of PW-14 has been referred to. It is also submitted that the prosecutrix cannot be said to be a sterling witness, inasmuch Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 37/315 as there are several contradictions in between her version as recorded in her written report, the statement made by her under Section 164 Cr.P.C. before the learned Magistrate and her deposition as PW-2, especially since contents of all the three are varying from each other. It is submitted that it is a well settled law that if a witness is not consistent, no reliance is required to be placed upon the testimony of such a witness. It is contended that there is delay in lodging the FIR, inasmuch the occurrence had taken place in the intervening night of 06/07.02.2016, however, the FIR was lodged belatedly on 09.02.2016, which further leads credence to the falsity of the prosecution story. The materials on record would show that a plan was made to falsely implicate the appellants and in fact the Biharsharif Police Station, which is jurisdictional police station of the prosecutrix is situated just outside the house of the prosecutrix, however neither any information was given to it when the prosecutrix had returned back to her house in the morning of 07.02.2016 nor thereafter and in fact PW-1 to PW- 4 had gone belatedly to the Mahila (Nalanda) Police Station for submitting the written report. Thus, it is clear that a plan had been hatched to falsely implicate the appellants.
23. Mr. Ajay Kumar Thakur, learned counsel for the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 38/315 appellants has further submitted that though the prosecutrix had told her sister at the time of leaving her house on 06.02.2016 that she would be back from the birthday party by 06:00 P.M., however when she had not returned back and was missing all throughout the night, there is nothing on record to show that the sisters of the prosecutrix has made any effort to trace the victim. Thus, the same also further falsifies the prosecution version. It is submitted that PW-2 (prosecutrix) has stated in paragraph no. 108 of her cross-examination that on 09.02.2016, when she had reached the police station for lodging FIR, one Mridula Madam had given her a paper to write her complaint, whereafter she had written over the said paper and handed over the same to Mridula Madam, whereupon she was immediately sent to the hospital. Thus, it is submitted that the earliest version of the prosecutrix furnished at the police station has been suppressed, which would have revealed the actual incident.
24. It is next contended that though the clothes of the prosecutrix was sent for F.S.L. examination, however the F.S.L. report has not been brought on record by the prosecution. Thus, adverse inference should be drawn. It is also stated that the Civil Surgeon, Nalanda had though constituted the Medical Board by writing a letter but neither the said letter has been exhibited nor Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 39/315 the Civil Surgeon has been examined. It is next submitted that though PW-3 has stated in her statement made under Section 164 Cr.P.C. before the learned Magistrate on 15.02.2016 that she had not made any statement before the police regarding having identified the third place of occurrence or the appellant of the first case but subsequently, it has been stated that when she had gone to the police station, she was shown the photograph of the appellant of the first case and then she had recognized him to be the perpetrator of the crime. It is also stated that even PW-4 in his statement made U/s. 164 Cr.P.C. before the Ld. Magistrate on 15.2.2016 has not stated that either the prosecutrix had identified the third place of occurrence or had identified the appellant of the first case to be the perpetrator of crime.
25. Mr. Ajay Kumar Thakur, learned counsel for the appellants has submitted that as far as the C.D.R. (call detail records), marked as Exhibits-L and L-1 are concerned, the same would show that the aforesaid Appellants No. 2, 3 and 6 had not made any phone calls to the appellant of the first case on 06.02.2016. It is contended that as far as the C.D.R. of the mobile of PW-1 of the date of 06.02.2016, for the period after 04:00 P.M. in the evening is concerned, she had received several calls and out of the same ten calls were from mobile no. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 40/315 9709759015 as also the tower location of the said mobile number was found to be situated in the district of Sheikhpura. Thus, apparently something was amiss and there was abnormal activity, hence definitely a false case has been cooked up. It is also contended that a bare perusal of the CDR of the mobile phones of PW-1 and PW-4 would show that no conversation had taken place in between them either on 06.02.2016 or 07.02.2016 or 08.02.2016 and call records would show that only on 09.02.2016 in the morning, PW-4 had called PW-1 from his native village, whereafter second call was made by PW-4 to PW- 1 around 10:00 A.M. in the morning of 09.02.2016 and the tower location has been found to be in front of the Bihar Sharif (Mahila) Police Station. Thus, it is submitted that it appears that no such incident as has been alleged by the prosecution had ever taken place, inasmuch as the call detail reports would show that PW-1 had not informed her father about the incident in question, although she had come to know about the same in the morning of 07.02.2016. It is also submitted that the second call of PW-4 to PW-1 is around 10:21 A.M., however PW-1 to PW-4 had arrived at the police station at 10:00 A.M. on 09.02.2016. It is contended that though the prosecutrix had put her signature on the written report but there is no mention that the same was read Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 41/315 over to her and after finding the same to be correct, she had put her signature, hence the same is fabricated. It is next stated that though in the written report, the prosecutrix has disclosed about the name of the husband of the appellant No. 2, i.e. Sulekha Devi, however in her evidence as PW-2 adduced before the learned Trial Court, she has said that she does not know the name of the husband of the appellant No. 2. Thus, it is submitted that the entire case of the prosecution is concocted.
26. Lastly, it is submitted that PW-3 has stated in her cross examination that few days prior to the aforesaid incident in question, they were invited to the house of Sulekha Devi for a birthday party, however since they were not on good terms, they had not gone to the house of Sulekha Devi, which contradicts the factum regarding she having arrived at the house of PW-2 on 06.02.2016 and having taken PW-2 along with her for attending a birthday party.
27. Shri Rajesh Kumar Singh, appearing for the appellant of the 4th case, namely Sandeep Suman @ Pushpanjay (herein after referred to as the Appellant No. 4) has submitted that the only role attributable to the appellant of the 4 th case is that when the prosecutrix had arrived along with Sulekha Devi and Chhoti Devi at the house of Nani of Chhoti Devi at Bakhtiyarpur, he Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 42/315 was also present there and then the Nani of Chhoti Devi had served chicken to all of them and they had eaten chicken, whereafter, Sulekha Devi, Chhoti Devi and one 8-10 years old girl along with the prosecutrix had left the house of Nani of Chhoti Devi by means of a Bolero vehicle and are stated to have gone to Giriyak. It is submitted by the learned senior counsel for the appellant No. 4 that neither he is named in the FIR nor in the statement made by the prosecutrix under Section 164 Cr.P.C, and his name has transpired in this case only in the statement of the prosecutrix recorded U/s. 161 Cr.P.C. and in her deposition made before the Ld. trial Court. However, there is no allegation of any wrong having been committed by the said appellant.
28. It is further submitted by the learned senior counsel, Shri Rajesh Kumar Singh that the police personnel i.e. PW-14 has produced the call records, which were available at the office of the Superintendent of Police, Nalanda and from perusal of the same, it is apparent that on 06.02.2016 at 03:15 PM, the mobile of Sulekha Devi was found to be out of the range of Biharsharif Town mobile Tower. It is stated that after 06:13 PM on 6.2.2016, no call was made by Sulekha Devi from her mobile. As far as the mobile of the sister of Sulekha Devi is concerned, namely Tusi Devi, the same was also not found within the range of the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 43/315 Nalanda and Nawada Mobile Tower. As far as the mobiles of the appellant of the first case and Sulekha Devi are concerned, there was no call in between the two on the intervening night of 06/07.02.2016. Now coming to the call detail records of mobile phone of PW-1 and PW-4, it is submitted that before 09.02.2016, no call had been made by either of them and they had talked only on 09.02.2016, on which day the first call was made by PW-4 to PW-1 at 06:52 AM and the second call was made at 10:21 AM whereas, it is claimed by PW-4 that they had reached at the police station at 10:00 AM.
29. The Ld. senior counsel has tried to draw contradictions from the statements of PW-1, PW-2, PW-3, PW-4, the fardbeyan recorded in the present case, the written report of the prosecutrix, statements made under Sections 161 and 164 Cr.P.C and has submitted that varying statements have been made by the witnesses, especially PW-1 to PW-4 regarding the persons who had accompanied the prosecutrix from Biharsharif to Bakhtiyarpur to Giriyak to Pathra English. It is submitted by referring to paragraph no. 47 of the deposition of PW-2 and paragraph no. 78 of the deposition of PW-15 that the police had not taken the prosecutrix inside the house, where the alleged incident is stated to have taken place, hence the place of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 44/315 occurrence has also not stood proved. Lastly it is submitted that the incident had taken place on 06.02.2016, whereas the matriculation examination is stated to have been held on 12.03.2016 and moreover, the certificate produced by the prosecutrix in support of her age has also not stood proved. Hence, it is submitted that as far as the appellant No. 4 is concerned, he has got no role to play in the alleged incident.
30. Mr. Aaruni Singh, learned counsel appearing on behalf of the appellant of the 5th case, Tusi Devi has submitted that the prosecutrix was taken by Sulekha Devi and Chhoti Devi to Bakhtiyarpur at the house of Nani of Chhoti Devi, where Tusi Devi was also present and then chicken was served to them and they had eaten chicken, whereafter Sulekha Devi, Chhoti Devi and one 8-10 years old child along with the prosecutrix had left for Giriyak in a Bolero vehicle. Thus, it is stated that as far as the appellant No. 5 is concerned, neither any role in the alleged occurrence has been attributed to her nor she had enticed the prosecutrix nor she had accompanied her to Giriyak and onward to Pathra English. It is further submitted that though it has been alleged that Tusi Devi had talked with the appellant of the 1st case, however in this connection the arguments advanced by Shri Rajesh Kumar Singh, Ld. senior counsel appearing for the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 45/315 appellant No. 4, i.e. Sandeep Suman @ Pushpanjay, has been adopted to submit that the call detail records would show that there was no conversation in between the appellant No. 5 and the appellant of the 1st case on the intervening night of 6/7.02.2016 and moreover, the mobile location of the said appellant was also not found within the district of Nalanda and Nawada. It is further submitted that there is delay of three days in lodging the FIR, which is fatal to the present case. It is also contended that neither the appellant No. 5 is named in the FIR nor in the statement made by the witnesses under section 161 Cr.P.C. nor in the statements made by PW-1 to PW-4 U/s. 164 Cr.P.C. and her name has transpired only in the deposition of PW-1 and PW-2. Thus, it is submitted that the appellant No. 5 is innocent and has got no role to play in the alleged occurrence. In nutshell, it is the submission of the Ld. counsel for the appellant No. 5 that no role whatsoever, even that of hatching a conspiracy can be attributed to appellant No. 5, thus she is required to be acquitted.
31. The learned A.P.P. for the State, Shri Dilip Kumar Sinha, has submitted that a bare perusal of the written report and deposition of the prosecutrix would show that firstly, the prosecutrix was taken to Bakhityarpur at the house of the Nani of Chhoti Devi and mother of Sulekha Devi, whereafter she was Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 46/315 taken to Giriyak and then to a house situated nearby at Pathra English and all these places of occurrence have been proved by the Investigating Officer i.e. PW-15, Mridula Kumari. It is further submitted by the learned APP for the State that PW-20, PW-21 and PW-22 are nodal officers of Vodafone, Idea and Airtel Mobile companies respectively, who have proved the call detail records and the same have also been marked as material exhibits. It is submitted that the evidence of PW-2 and the provisional matriculation certificate produced by PW-2, which has been marked as Exhibit-3, is conclusive proof of the age of the prosecutrix as also the same shows that the prosecutrix was minor on the date of occurrence, inasmuch as her date of birth is 04.01.2000 and even the Medical Board has found the age of the prosecutrix to be in between 16-17 years of age.
32. As regards the adverse inference being drawn by the defence with regard to non-arrest of the appellant of the first case immediately after the prosecutrix had disclosed his identity, it is submitted by the learned APP for the State that since he was member of the Legislative Assembly, the Investigating Officer was not in a position to arrest him, hence arrest warrant was obtained from the Magistrate and then appropriate steps were taken. The learned APP for the State has next referred to the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 47/315 report of the Medical Board to submit that even the Medical Board has opined that possibility of rape cannot be ruled out and reference in this connection has been made to the evidence of PW-8, i.e. Dr. Shailendra Kumar. Reference has also been made to the evidence adduced by PW-15, i.e. the Investigating Officer, especially paragraph nos. 31 to 36 thereof, to submit that the place of occurrence has stood proved. It is also submitted that a bare perusal of the evidence of the prosecutrix would show that her evidence is not only reliable but trustworthy as well, hence her sole testimony is itself enough to prove the guilt of the appellants and further there is no material discrepancy in the evidence produced by the prosecution. It is thus submitted that the learned Trial Court, after considering the evidence has rightly convicted the appellants, hence all the aforesaid appeals are fit to be dismissed.
33. The learned Amicus Curiae appearing for the prosecutrix/ victim has, at the outset submitted that such cases as the present one should be dealt with sensitivity and moreover, a female who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. It is further submitted that the offence Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 48/315 of rape is a very serious offence which is not merely an assault but degrades the entire personality of the prosecutrix, hence it is required that her testimony should be read carefully, should not be eyed with suspicion, minor contradictions should be ignored and relentless cross-examination should not come in the way. It is also submitted that a rape victim would never depose falsely, hence refusal to act on the testimony of victim of sexual assault is adding insult to injury. Nonetheless, it is submitted that a conviction can definitely be based on the sole testimony of the victim/prosecutrix when the evidence of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In this regard reliance has been placed on a judgment rendered by the Hon'ble Apex Court in the case of Bharwada Bhoginbhai Hirjibhai vs. The State of Gujarat, reported in (1983) 3 SCC 217, paragraph nos. 2, 5, 6, 9 and 11 whereof are reproduced herein below:-
"2. The need of the hour is to mould and evolve the laws so as to make it more sensitive and responsive to the demands of the time in order to resolve the basic problem: "Whether, when, and to what extent corroboration to the testimony of a victim of rape is essential to establish the charge." And the problem has special significance for the women in India, for, while they have often been idolized, adored, and even worshipped, for ages they have also been exploited and denied even handed justice -- sixty crores anxious eyes of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 49/315 Indian women are therefore focussed on this problem. And to that problem we will presently address ourselves.
5. ........ The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised.
The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 50/315 individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses.
9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 51/315 the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life.
Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as......
11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factor" does not Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 52/315 render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the "probabilities factor" is found to be out of tune."
34. Reference has also been made to a judgment rendered by the Hon'ble Apex Court in the case of State of Himachal Pradesh vs. Raghubir Singh, reported in (1993) 2 SCC 622, paragraph no. 6 whereof is reproduced herein below:-
6. The learned Single Judge of the High Court also drew an inference against the prosecution from the fact that only two blood stains had been found on the shawl by the Chemical Examiner and doubted the prosecution version on that account. According to the learned Single Judge:
"In natural course if this shawl had been used under the prosecutrix at the time of the alleged offence, the same should have been drenched with blood in the middle. Moreover, this shawl should have been full of mud as it remained lying on the ground under the prosecutrix for such a long time and when it had rained throughout."
In making the above observations, obviously the High Court ignored the testimony of Doctor Urmil Gupta who had found the presence of blood stains and mud on the shawl and who had opined that the bleeding from the edges of the vagina was slight and that some amount of clotted blood was also present. The prosecutrix was a girl of tender age and on account of the rape committed on Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 53/315 her, there was bleeding from her vagina but to expect that the shawl should have got "drenched with blood" as if the large blood arteries had been cut, is letting the imagination run wild and ignoring the circumstances of the case. The absence of spermatozoa on the vaginal slide, which was also pressed into aid by the High Court to acquit the respondent, was not based on proper scrutiny of the evidence. The prosecution case itself was that on being surprised while the respondent was in the act of committing sexual intercourse on the prosecutrix, he ran away carrying his underwear. The absence of spermatozoa under the circumstances could not be said to be a circumstance in favour of the respondent at all. The judgment of the High Court, in our opinion, is based more on surmises and conjectures than on proper appreciation of evidence. It exposes the insensitivity of the learned Judge to the serious crime committed against human dignity. We are not impressed by the manner in which the High Court dealt with the case. Courts must be wary, circumspect and slow to interfere with reasonable and proper findings based on appreciation of evidence as recorded by the lower courts, before upsetting the same and acquitting an accused involved in the commission of heinous offence of rape of hapless girl child."
35. Yet another judgment relied upon by the learned Amicus Curiae is the one rendered by the Hon'ble Apex Court in the case of Phool Singh vs. State of Madhya Pradesh, reported in (2022) 2 SCC 74, paragraphs no. 8 and 10 to 12 whereof are reproduced herein below:-
"8. In Ganesan [Ganesan v. State, (2020) 10 SCC 573], this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 54/315 sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paras 10.1 to 10.3, it is observed and held as under:
[Ganesan v. State, (2020) 10 SCC 573, SCC pp. 578-82) "10.1. Whether, in the case involving sexual harassment, molestation, etc. can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under: (SCC pp. 195-98) '9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 55/315 Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
10. In State of U.P. vs. Pappu, (2005) 3 SCC 594, this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:
"12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 56/315 crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do."
11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under:
"8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 57/315 her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ...
Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...
***
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 58/315 particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86, this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622, this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P., (2010) 2 SCC 9, placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, 1951 SCC.
14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 59/315 corroboration. The court may convict the accused on the sole testimony of the prosecutrix.' 10.2. In Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence & appears to be absolutely trustworthy, unblemished and should be of sterling quality.
10.3. Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21. In para 22, it is observed and held as under:
'22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 60/315 the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.' "
(emphasis in original)
10. In Sham Singh v. State of Haryana, (2018) 18 SCC 34, it is observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury......
11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 61/315 as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained.
12. Now so far as the submission on behalf of the accused that as there were no external or internal injuries found on the body of prosecutrix & therefore it may be a case of consent is concerned, the aforesaid has no substance at all. No such question was asked, even remotely, to the prosecutrix in her cross-examination. Therefore, the aforesaid submission is to be rejected outright."
36. The learned Amicus Curiae has also relied upon a Judgment rendered by the Hon'ble Apex Court in the case of State of Maharashtra vs. Chandraprakash Kewalchand Jain, reported in (1990) 1 SCC 550, paragraphs no. 17, 18, 22 and 29 whereof are reproduced herein below:-
"17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 62/315 decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.
18. But when such a crime is committed by a person in authority, e.g. a police officer, should the court's approach be the same as in any other case involving a private citizen? By our criminal laws wide powers are conferred on police officers investigating cognizable offences. The infrastructure of our criminal investigation system recognises and indeed protects the right of a woman to decent and dignified treatment at the hands of the investigating agency. This is evident from the proviso to sub-section (2) of Section 47 of the Code which obliges the police officer desiring to effect entry to give an opportunity to the woman in occupation to withdraw from the building. So also sub-section (2) of Section 53 requires that whenever a female accused is to be medically examined such examination must be under the supervision of a female medical practitioner. The proviso to Section 160 stipulates that whenever the presence of a woman is required as a witness the investigating officer will record her statement at her own residence. These are just a few provisions which reflect the concern of the legislature to prevent harassment and exploitation of women and preserve their dignity. Notwithstanding this Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 63/315 concern, if a police officer misuses his authority and power while dealing with a young helpless girl aged about 19 or 20 years, her conduct and behaviour must be judged in the backdrop of the situation in which she was placed. The purpose and setting, the person and his position, the misuse or abuse of office and the despair of the victim which led to her surrender are all relevant factors which must be present in the mind of the court while evaluating the conduct evidence of the prosecutrix. A person in authority, such as a police officer, carries with him the awe of office which is bound to condition the behaviour of his victim. The court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molested or raped. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives, including her husband. Instead of treating her with compassion and understanding as one who is an injured victim of a crime, she is, more often then not, treated as a sinner and shunned. It must, therefore, be realised that a woman who is subjected to sex violence would always be slow and hesitant about disclosing her plight. The court must, therefore, evaluate her evidence in the above background.
22. Before we proceed to deal with these discrepancies we think it is necessary to clear the ground on the question whether the prosecutrix had a sufficiently strong motive to falsely involve the respondent and that too a police officer. It is possible that she may have felt annoyed at being dragged out of the hotel room at dead of night after they had satisfied Police Sub-Inspector Qureishi that they were legally wedded only a few hours back. PW 1 may also have felt offended at being wrongly booked under Sections 110/117, Bombay Police Act. The question is whether on account of this annoyance both PW 1 Mohmad Shafi and PW 2 Shamimbanu would be prepared to stake the reputation of the latter? As pointed out earlier ordinarily an Indian woman would be most reluctant to level false accusation of rape involving her Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 64/315 own reputation unless she has a very strong bias or reason to do so. In the present case although the couple had reason to be annoyed with the conduct of the respondent, the reason was not strong enough for Mohmad Shafi to involve his wife and soil her reputation nor for Shamimbanu to do so. An Indian woman attaches maximum importance to her chastity and would not easily be a party to any move which would jeopardise her reputation and lower her in the esteem of others. There are, therefore, no such strong circumstances which would make the court view her evidence with suspicion.
29. On the question of sentence we can only say that when a person in uniform commits such a serious crime of rape on a young girl in her late teens, there is no room for sympathy or pity. The punishment must in such cases be exemplary. We, therefore, do not think we would be justified in reducing the sentence awarded by the trial court which is not harsh."
37. At this juncture, reliance is placed on a judgment rendered by the Hon'ble Apex Court in the case of State of Punjab vs. Gurmit Singh & Ors., reported in (1996) 2 SCC 384, para nos. 8 and 21 whereof are reproduced herein below:-
"8. The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of Xth class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 65/315 prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm, otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the bus adda is a travesty of justice. The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The trial court fell in error for discrediting the testimony of the prosecutrix on that account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. The prosecution has explained that as soon as Tirlok Singh PW 6, father of the prosecutrix came to know from his wife, PW 7 about the incident he went to the village Sarpanch and complained to him. The Sarpanch of the village also got in touch with the Sarpanch of Village Pakhowal, where in the tubewell kotha of Ranjit Singh Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 66/315 rape was committed, and an effort was made by the panchayats of the two villages to sit together and settle the matter. It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputation and future prospects of the marriage etc. of their daughter. Tirlok Singh PW 6 truthfully admitted that he entered into consultation with his wife as to whether to lodge a report or not and the trial court appears to have misunderstood the reasons and justification for the consultation between Tirlok Singh and his wife when it found that the said circumstance had rendered the version of the prosecutrix doubtful. Her statement about the manner in which she was abducted and again left near the school in the early hours of next morning has a ring of truth. It appears that the trial court searched for contradictions and variations in the statement of the prosecutrix microscopically, so as to disbelieve her version. The observations of the trial court that the story of the prosecutrix that she was left near the examination centre next morning at about 6 a.m. was "not believable" as "the accused would be the last persons to extend sympathy to the prosecutrix" are not at all intelligible. The accused were not showing "any sympathy" to the prosecutrix while driving her at 6.00 a.m. next morning to the place from where she had been abducted but on the other hand were removing her from the kotha of Ranjit Singh and leaving her near the examination centre so as to avoid being detected. The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the centre and waited till she went home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 67/315 appears to us to be most natural. The trial court overlooked that a girl, in a tradition-bound non- permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. Therefore her informing her mother only on return to the parental house and no one else at the examination centre prior thereto is in accord with the natural human conduct of a female. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 68/315 convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self- inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 69/315 crime strikes the judicial mind as probable........
21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
38. Lastly, on the aforesaid issue, reliance has been placed on a judgment rendered by the Hon'ble Apex Court in the case of Lillu alias Rajesh and Anr. vs. The State of Haryana, reported in (2013)14 SCC 643, paragraphs no. 12 and 13 whereof are Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 70/315 reproduced herein below:-
"12. In State of Punjab v. Ramdev Singh [(2004) 1 SCC 421] this court dealt with the issue and held that rape is violative of the victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanising act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self- esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution.
13. In view of the International Covenant on Economic, Social, and Cultural Rights, 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, the rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy."
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 71/315
39. Now adverting to the case in hand, the learned Amicus Curiae has first submitted that the natural conduct of the prosecutrix and the chain of events which goes to establish that the prosecutrix is a sterling witness are evident from the evidence on record and a bare perusal of the testimony of the prosecution witnesses would reveal the undisputed facts and sequence of events pertaining to the occurrence in question, which are being stated herein after. The prosecutrix and her siblings were staying alone at Biharsharif for their education and just two months before the date of incident, the prosecutrix had come to Biharsharif. Sulekha Devi (Appellant No. 2) and her daughter Chhoti Devi (Appellant No. 6) were the neighbours of the prosecutrix and she had become familiar with them during the course of two months apart from the Appellant nos. 2 & 6 being regarded as guardian figure in absence of the parents of prosecutrix at Biharsharif. Thus, while the prosecutrix was going with Sulekha Devi to the alleged birthday party, her elder sister, i.e. PW-1 had neither given any mobile to the prosecutrix nor she had asked her brother or sister to accompany the prosecutrix on account of their faith in Appellant nos. 2 and 6.
40. The learned Amicus Curiae has further submitted that the evidence on record would show that earlier on two occasions the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 72/315 prosecutrix had refused to go with the Appellant nos. 2 and 6, hence she did not want to upset them this time, as such had agreed to go with them to the alleged birthday party. The Appellant nos. 2 and 6 had informed PW-1 that the birthday party was at Bharaopar and they would return back in 1-1½ hours, hence after much persuasion, PW-1 had permitted the prosecutrix to go to the alleged birthday party since she was expected to come back before it became dark, whereafter Chhoti Devi, Sulekha Devi, one 8-10 years old girl and daughter of Chhoti Devi, namely Tuktuk took the prosecutrix to Ramchandarpur where they told her to climb a bus, whereupon the prosecutrix had raised an objection but was calmed down by stating that they were going to Bakhtiyarpur to pick up Nani of appellant no. 6 (Chhoti Devi) since she will also go to the birthday party, hence the prosecutrix had been induced into sitting in the bus to go to Bakhtiyarpur. As it is, the prosecutrix did not know about any locality of Biharsharif and had neither gone to Bharaopar or Ramchandarpur or Bakhtiyarpur or Giriyak or for that matter Pathra English, before the date of incident. At Bakhtiyarpur, the prosecutrix met Nani of Appellant No. 6, Appellant nos. 4 and 5 and there all of them had dinner. Thereafter, the victim had asked Appellant nos. 2 and 6 to call Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 73/315 her sister i.e. PW-1, since it was getting late and inform her that they would get late but she was told that they did not have the mobile number of PW-1, hence they cannot call her. Thus, till this time there was nothing suspicious to create an alarm in the mind of the prosecutrix. After an hour the prosecutrix was made to sit in a Bolero vehicle wherein three strangers were sitting, however, the prosecutrix did not suspect any foul play since Nani of Appellant No. 6, i.e. Appellant No. 3 (Radha Devi) and a young girl aged about 8-10 years as also Appellant No. 2 had sat in the vehicle although at the inception the prosecutrix had resisted and had stated that if Chhoti did not sit in the vehicle she would not sit but then she was told that since there is no space in the vehicle, the Appellant No. 6 shall come in a different car, hence the victim did not raise any alarm.
41. It is stated that the evidence on record would bear it out that throughout the journey from Bakhtiyarpur to Giriyak and Pathra English, the prosecutrix was getting impatient and asking the ladies present in the vehicle as to how much time it would take to reach Biharsharif, on which the Appellant No. 2, Sulekha Devi told her that they were about to reach Biharsharif. Since the prosecutrix did not know the route and had never been to Giriyak, she believed that Biharsharif would come after crossing Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 74/315 Giriyak. After the prosecutrix had reached the place of occurrence, i.e. Pathra English at about 11:00-11:30 in the night, she was informed by the Appellant No. 2, Sulekha Devi that they had reached Giriyak. At that time not only all the shops were closed but nobody could be found on the street and there were only 2-3 servants/guards at the four storied building, who had greeted Appellant No. 2 Sulekha Devi. The prosecutrix had not raised any alarm since all the persons present at the said house were known to the Appellant No. 2, Sulekha Devi but the prosecutrix had then confronted Appellant No. 2 Sulekha Devi as to why they have not gone to the birthday party, whereafter she was informed by the Appellant No. 2, Sulekha Devi that they had not come to a birthday party but they have come to meet a Sir who is a good man. Nonetheless, the prosecutrix who was all alone there was taken by the Appellant No. 2 Sulekha Devi to the third floor of the house in question where food was served and she had eaten a bit of it reluctantly. Thereafter, around 12:00 in the midnight, the prosecutrix was called to the second floor where a man aged about 40-50 years was present in the room and was drinking liquor, which was also offered to the Appellant No. 2, Sulekha Devi and the prosecutrix but the prosecutrix had denied, however in the meantime, Radha Devi Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 75/315 (Appellant No. 3) had arrived there with the young girl aged about 8-10 years but the said person had turned her away saying that she is too young, whereafter Radha Devi had taken her away and only then the prosecutrix got suspicious and scared. The appellant no. 1 Rajballabh Prasad @ Rajballabh Yadav had then forcibly put a cigarette in the mouth of the prosecutrix, whereafter she was made to sit on a bed forcibly as also the Appellant No. 2 Sulekha Devi had disrobed her Pajama and when the prosecutrix had resisted, the Appellant No. 2, Sulekha Devi had threatened her that she would be sent to the servants/guards who would abuse her throughout the night, whereupon the Appellant Nos. 1 and 2 had held the hands of the prosecutrix while Appellant No. 2 Sulekha Devi had also put a cloth in the mouth of the prosecutrix and gagged her and then the appellant no. 1, Rajballabh Prasad @ Rajballabh Yadav had committed rape with her for 1-1½ hours. It is submitted that neither the Appellant No. 1, Rajballabh Prasad @ Rajballabh Yadav had bit the prosecutrix on her body nor the prosecutrix could either scratch or assault the Appellant No. 1, Rajballabh Prasad @ Rajballabh Yadav since her hands were being held tightly by Appellant Nos. 1 and 2. The prosecutrix had become too weak to get up, hence the Appellant No. 2 Sulekha Devi Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 76/315 had helped her to get up and get dressed, whereafter she was taken to a room at the third floor and there she was told to freshen up. The prosecutrix had then washed herself but she neither tried to escape nor raise an alarm since no one known to her was present there and the house was being guarded by the guards of Appellant No. 1, Rajballabh Prasad @ Rajballabh Yadav. The prosecutrix was then told to sleep since it was late in the night but she could not sleep and later she heard the Appellant Nos. 2 and 3 talking about monetary transaction.
42. It is stated that thereafter, in the morning at about 4:00 a.m., she along with Sulekha Devi, Radha Devi and the young girl aged about 8-10 years had left the house in question in a car for Bakhtiyarpur, however in the early morning not a single person was present in and around the said house or on the way back to Bakhtiyarpur, hence there was no question of the prosecutrix raising any alarm and moreover all throughout the journey from Pathra English to Bakhtiyarpur, the prosecutrix was being threatened that in case she disclosed about the incident to anyone, she would have to face the consequences. After the prosecutrix and others had reached Bakhtiyarpur, they took an auto from Ranisarai to Biharsharif Bus Stand and then they came to Ramchandarpur Bus Stand by bus, however since Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 77/315 she had been threatened by the said appellants and was scared as also not in a proper state of mind, she could not raise any alarm. The victim was then dropped at her residence around 10:00 a.m. on 07.02.2016 where PW-3, sister of the prosecutrix had opened the door and saw her crying, however the prosecutrix rushed to the bathroom and washed her clothes with soap as also cleaned the blood stains. PW-3 had then continuously asked the prosecutrix as to what had happened but she waited for PW-1 to return from her coaching so that she would not have to repeat the horrifying incident twice and when PW-1 came, she revealed about the incident to PW-1 and PW-3, whereafter they became nervous and worried and then they had called their father but they did not reveal about the rape incident and had only told him that she was sick and had asked him to come. In fact the mother of the prosecutrix was sick and undergoing treatment, hence the girls had thought it proper not to torment both their mother and father, however in the evening of 08.02.2016, father of the prosecutrix had come to Biharsharif when PW-1 had narrated the incident, whereafter he had panicked and took some time to come to terms with the said news and then on the next day morning at around 10:00-10:30 a.m., he along with the prosecutrix and PW-1 had gone to Mahila (Nalanda) Police Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 78/315 Station, Biharsharif to lodge a case, whereafter the aforesaid FIR was registered and investigation was conducted by the police, during the course whereof, the prosecutrix was taken to the place of occurrence on 11.02.2016, where she had screamed upon seeing the house in question at Pathra English as also the Appellant No. 1, Rajballabh Prasad @ Rajballabh Yadav strolling there and then she had identified both the house and the Appellant No. 1.
43. Thus, the learned Amicus Curiae has submitted a bare reading of the aforesaid sequence of events, as is manifest from the evidence on record, would show that the conduct of the prosecutrix and her family members is absolutely natural, there is no missing link in the entire chain of events, as narrated by the prosecutrix so as to raise any doubt of prevarication in her testimony. It is next submitted that the victim has withstood the lengthy and strenuous cross-examination of the defence but has not given any room for any doubt as to the factum of occurrence. Thus all the aforesaid facts and circumstances definitely demonstrates that the prosecutrix is a sterling witness, on whose sole testimony the guilt of the accused can be proved/confirmed. In this regard it has been submitted that the Hon'ble Apex Court in the case of Rai Sandeep @ Deepu Vs. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 79/315 State (NCT of Delhi), reported in (2012) 8 SCC 21 has enumerated the criteria's for determining as to whether the prosecutrix is a sterling witness or not and considering the said factors, it can be safely concluded that the prosecutrix is a sterling witness.
44. Elaborating further on the aforesaid aspect of the matter, the learned Amicus Curiae has submitted that as far as the evidence of the prosecutrix is concerned, if the same is read in conjunction with the written report and the statement made under Section 164 Cr.P.C. before the learned Magistrate, it would be apparent that she is consistent on the date and time of occurrence as also the mode and manner of incident, she has also consistently deposed about the sequence of event, she is also consistent with regard to the persons who had accompanied her right from her residence to the house of the appellant no. 1 Rajballabh Prasad @ Rajballabh Yadav which is the place of occurrence and the accused persons with whom she had met, she is also consistent with regard to the description of the place of occurrence/ identification of the accused/his house, the route and mode of transport and the chain of events culminating in the commission of rape by appellant no. 1 Rajballabh Prasad @ Rajballabh Yadav with the prosecutrix and thereafter and no Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 80/315 contradictions have been elicited by the defence while cross- examining her. It is thus submitted that the evidence of the prosecutrix is consistent and trustworthy, hence the said witness is that of a sterling quality. The learned Amicus Curiae has next submitted that the evidence of PW-2, i.e. the prosecutrix, PW-5 Rajeshwar Ram (Assistant Sub-Inspector of Police), PW-6 Manju Yadav (Assistant Sub-Inspector of Police), PW-7 Gandhari Devi (Sub-Inspector of Police) and PW-15 Mridula Kumari (Investigating Officer) would show that there is enough proof of the fact that the prosecutrix had identified not only the place of occurrence, i.e. the white house at Pathra English but had also identified the perpetrator of crime i.e. the appellant no. 1 namely, Rajballabh Prasad @ Rajballabh Yadav.
45. The other issue raised by the Ld. Amicus Curiae is that the sole testimony of the prosecutrix requires no corroboration and the same would be enough to prove the guilt of the accused persons beyond all reasonable doubt. In this regard, reference have been made to various judgments rendered by the Hon'ble Apex Court, which are being enumerated herein below:-
i. Bharwada Bhoginbhai (supra);
ii. Ram Sevak Lohar vs. State, reported in 2022 SCC Online Cal 551;
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 81/315 iii. Sunil Kumar vs. State Govt. of NCT of Delhi, reported in (2003) 11 SCC 367;
iv. Raghubhir Singh (supra);
v. Phool Singh (supra);
vi. Om Prakash vs. State of UP, reported in (2006) 9 SCC 787;
vii. Chandraprakash Kewalchand Jain (supra);
viii. Gurmit Singh & Ors. (supra);
ix. Lok Mal alias Loku vs. State of UP, reported in 2025 SCC Online SC 516.
46. The learned Amicus Curiae has also relied on some judgments rendered by the Hon'ble Apex Court to submit that the testimony of the prosecutrix stands on a higher pedestal than the injured witnesses. Reference has been made in this regard to the following judgments:-
i. Bharwada Bhoginbhai (supra);
ii. State of Punjab vs. Ramdev Singh, reported in (2004) 1 SCC 421;
ii. Phool Singh (supra);
iv. Om Prakash (supra);
v. Chandraprakash Kewalchand Jain (supra);
vi. Lok Mal alias Loku (supra);
vii. State of UP vs. Pappu, reported in (2005)3 SCC 594;
viii. Lillu @ Rajesh (supra);
ix. Ram Sevak Lohar (supra);
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 82/315 x. Satyabrat Ashok @ Satya Vrat Ashok @ Pappu Sharma @ Pappu vs. State of Bihar, reported in 2024 SCC Online Pat 6324.
47. The learned Amicus Curiae has also stated that the aforesaid sequence of events not only explains reasonably the delay in lodging of FIR but also the reasons as to why the prosecutrix had not raised any alarm at any public place, apart from the reasons for absence of injury on the body of the prosecutrix. It is submitted that the case in hand is a case of sexual assault, hence the same cannot be equated with a case involving other offences, thus the delay in lodging of the FIR in the present case cannot lead to any adverse inference qua the prosecutrix. In this regard, reference has also been made to the evidence of the prosecutrix i.e. PW-2 to submit that the prosecutrix has consistently stated in her evidence that she had been threatened not to disclose about the incident, hence not only she but her sisters had also become nervous when she had returned back to her home after the incident on 07.02.2016 and had, therefore not informed her father, which had ultimately led to delay in lodging of the FIR. It has also been stated that the mental condition of the prosecutrix was also not such that she could have immediately gone to the police station and informed the police about the incident and she had taken some time to get Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 83/315 composed, whereafter she along with her sisters had called their father and then the FIR was lodged on the morning of 9.2.2016. In this regard, reliance has been placed on the judgments rendered by the Hon'ble Apex Court, which are being detailed herein below:-
i. Ramdev Singh (supra), ii. State of Himachal Pradesh vs. Prem Singh, reported in (2009) 1 SCC 420, iii. Phool Singh (supra) and iv. Gurmit Singh & Ors. (supra).
48. The next issue which has been canvassed by the learned Amicus Curiae is the one regarding the age of the prosecutrix. It is submitted by the learned Amicus Curiae that the provisional matriculation certificate has been submitted by PW-2 prosecutrix, wherein her date of birth has been shown to be 04.01.2000. The learned Amicus Curiae has also referred to the evidence of PW-8, Dr. Shailendra Kumar to submit that he has stated in his evidence that a Medical Board was constituted under the Chairmanship of Civil Surgeon-cum-C.M.O., Nalanda vide letter dated 17.02.2016 comprising of six members including him and upon a detailed physical, dental, radiological and pathological examination of the prosecutrix, the Medical Board has opined that the age of the prosecutrix is in between Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 84/315 16 to 17 years and rape could not be ruled out. In fact PW-9, Dr. Budha Prakash (Orthopaedic surgeon and member of the Medical Board) has also stated in his evidence that he was one of the member of the Medical Board and after going through the x-ray plates, the age of the prosecutrix was determined in between 16-17 years. PW-10, Dr. Akhilesh Kumar (Dental Surgeon and a member of the Medical Board) has stated in his evidence that he was also part of the Medical Board which had conducted the medical examination of the prosecutrix and he had examined the teeth of the prosecutrix and on examination of teeth of the victim, he had concluded that the age of the prosecutrix was less than 17 years. As far as PW-11, Dr. Kumkum Kumari (Lady Medical Officer) and PW-13, Dr. Kumari Preeti Ranjna (Lady Medical Officer) are concerned, they have also stated in their evidence that they were also one of the members of the Medical Board and on physical examination of the victim, her age has been found to be in between 16-17 years. The learned Amicus Curiae has next stated that the father of the victim i.e. PW-4, has chronologically explained the sequence of events, beginning from solemnization of his marriage in the year 1990 upto the birth of his children, which would be apparent from paragraph nos. 7 and 13 to 17 of the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 85/315 evidence of PW-4 and the same also substantiate the fact that the prosecutrix was born in the year 2000. In this regard, it has been submitted that the same test as is required to determine the juvenility of a child in conflict with law is also required to be followed in the case of determining the juvenility of a minor prosecutrix. Reference has been made to a leading judgment rendered by the Hon'ble Apex Court in the case of Jarnail Singh vs. The State of Haryana, reported in (2013)7 SCC 263, paragraphs no. 22 and 23 whereof are reproduced herein below:-
"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
"12.Procedure to be followed in determination of age.
--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 86/315 (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 87/315 or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 88/315 determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion."
49. The learned Amicus Curiae has further submitted by referring to Exhibit-3 i.e. the provisional certificate dated 29.05.2016 (marked as Exhibit-3) of the prosecutrix of having passed the Annual Secondary School Examination, 2016, which has been issued by the Bihar School Examination Board, Patna (hereinafter referred to as the "provisional matriculation certificate") that the same is a public document and therefore, it is not required to be proved like any other document, although the same has been marked as an exhibit with objection. It is stated that the defence has not put any question to the prosecutrix on the issue as to whether the said provisional Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 89/315 matriculation certificate is original or a photo-copy or mechanical copy of the original, hence it would be presumed that the same is the original copy of the provisional matriculation certificate of the prosecutrix. In this regard, the learned Amicus Curiae for the prosecutrix has placed reliance on Section 74 of the Indian Evidence Act, 1872.
50. On the issue of age determination, various judgments rendered by the Hon'ble Apex Court have been referred to, which are being enumerated herein below:-
i. Jarnail Singh vs. State of Haryana, reported in (2013) 7 SCC 263;
ii. Rishipal Singh Solanki v. State of U.P., reported in (2022) 8 SCC 602;
iii. Ashwani Kumar Saxena vs. State of M.P., reported in (2012) 9 SCC 750;
iv. Parag Bhati vs. State of UP, reported in (2016)12 SCC 744;
v. State of M.P. vs. Anoop Singh, reported in (2015) 7 SCC 773;
vi. Satyabrat Ashok @ Satya Vrat Ashok @ Pappu Sharma @ Pappu (supra).
51. The learned Amicus Curiae for the prosecutrix has also submitted that even if the provisional matriculation certificate of the prosecutrix is kept aside for a moment and the medical report furnished by the Medical Board on 17.02.2016 (Exhibit-
4) is taken into account, the same depicts that the age of the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 90/315 prosecutrix has been assessed to be in between 16-17 years, as is apparent from the final opinion of the said Medical Board, which is being reproduced herein below:-
"Final opinion:- On the basis of above Physical, Dental, Radiological and Pathological Examination the Board is in opinion of that the age of Preeti Kumari D/o Jaganath Prasad is between (16 to 17 yrs.) Sixteen to Seventeen years and Rape cannot be ruled out."
52. Thus, it is submitted that the prosecutrix is undoubtedly below the age of 17 years. In this regard, reliance has also been placed on the testimony of PW-4 i.e. father of the prosecutrix, PW-8, Dr. Shailendra Kumar, PW-9, Dr. Budha Prakash, PW-10, Dr. Akhilesh Kumar, PW-11, Dr. Kumkum Kumari (Lady Medical Officer) and PW-13, Dr. Kumari Preeti Ranjna (Lady Medical Officer).
53. The learned Amicus Curiae has next contended that Section 29 of the POCSO Act, 2012 postulates that the Special Court shall presume, that such person who is being prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act has committed or abetted or attempted to commit the offence unless the contrary is proved. Reference has also been made to Section 30 of the POCSO Act, 2012 to submit that for the purposes of this Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 91/315 Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. For ready reference Sections 29 and 30 of the POCSO Act, 2012 are reproduced herein below:-
"29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
30. Presumption of culpable mental state.- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.- In this section, "culpable mental state"
includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact."
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 92/315
54. On the aforesaid issue reference has been made to a judgment rendered by the Hon'ble Apex Court in the case of Jarnail Singh vs. The State of Haryana, reported in (2013 )7 SCC 263 as also the one rendered in the case of Ram Sewak Lohar vs. State, reported in 2022 (SCC online) CAL 551.
55. The learned Amicus Curiae has also relied on a judgment rendered by a Co-ordinate Bench of this Court in the case of Satyabrat Ashok vs. State of Bihar, reported in 2024 SCC online PAT 6324, paragraphs no. 18 and 21 whereof are reproduced herein below:-
"18. In Babu v. State of Kerala, (2010) 9 SCC 189, Hon'ble Apex Court has observed as follows:
"27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like Negotiable Instruments Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 93/315 There may be difficulty in proving a negative fact.
28. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden on proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution."
(Emphasis supplied)
21. In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, Hon'ble Supreme Court has held as follows:--
"6. ............. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author [Glanville Williams in 'Proof of Guilt'.] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 94/315 general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "persons" and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
(Emphasis Supplied)
56. The learned Amicus Curiae appearing for the prosecutrix/ victim has also submitted that the First Information Report cannot be treated as an encyclopaedia, thus, testimony of the witnesses are required to be relied upon unless they suffer from exaggerations. Reference in this regard has been made to the judgment rendered by the Hon'ble Apex Court in the case of Sunil Kumar vs. State Government of NCT of Delhi, reported in (2003) 11 SCC 367 and the one rendered in the case of Animireddy Venkata Ramana & Ors. vs. Public Prosecutor, reported in 2008(3) PLJR SC 453. It is also submitted that the Hon'ble Apex Court has also laid down the mode and manner in Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 95/315 which the testimony of a prosecutrix should be relied upon in a judgment rendered in the case of Om Prakash vs. State of U.P., reported in (2006) 9 SCC 787, paragraphs no. 13 to 15 whereof are reproduced herein below:-
"13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting (sic scathing) her own prestige and honour.
14. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault--it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 96/315 degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation. This position was highlighted in State of Punjab v. Gurmit Singh.
15. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, 1872 (in short "the Evidence Act") similar to Illustration
(b) to Section 114 which requires it to look for Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 97/315 corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. This position was highlighted in State of Maharashtra v.
Chandraprakash Kewalchand Jain [(1990) 1 SCC 550]."
57. The other issue canvassed by the learned Amicus Curiae is regarding relevancy of F.S.L. report and the medical examination report. It is submitted that the evidence of the prosecutrix would show that she had washed her clothes twice with soap and water, hence obviously nothing could be found during the course of F.S.L. examination. It is also submitted that the incident had taken place in the intervening night of 06/07.02.2016, whereas the medical examination was held on 17.2.2016, hence such medical examination becomes irrelevant on account of lapse of about ten days. Nonetheless, it is submitted by referring to the said medical report dated 17.02.2016 that the Medical Board has finally opined that the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 98/315 possibility of rape cannot be ruled out. In this regard, it is also submitted that even if the medical report either that of Dr. Krishna or that of the Medical Board dated 17.02.2016, which points towards the prosecutrix being used to sexual intercourse, her hymen being old torn and there being no injury on her private parts, is accepted on its face value, the same cannot lead to the presumption that the victim is a promiscuous woman. In this regard, various authorities of the Hon'ble Apex Court have been referred to, which are enumerated herein below:-
i. Ramdev Singh (supra);
ii. Phool Singh (supra);
iii. Gurmit Singh & Ors. (supra);
iv. Pappu (supra);
v. State of Uttar Pradesh vs. Munshi, reported in (2008) 9 SCC 390;
vi. Lillu @ Rajesh and Another (supra).
58. At this juncture, it would be apposite to reproduce paragraphs No. 10 and 11 of the Judgment rendered in the case of Lillu @ Rajesh & Another (Supra), herein below:-
"10. This Court while dealing with the issue in State of U.P. v. Munshi [(2008) 9 SCC 390] has expressed its anguish and held that even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the contrary, the question still remains as to whether the accused committed rape Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 99/315 on the victim on the occasion complained of. Even if the victim had lost her virginity earlier, it can certainly not give a licence to any person to rape her. It is the accused who was on trial and not the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. A prosecutrix stands on a higher pedestal than an injured witness for the reason that an injured witness gets the injury on the physical form, while the prosecutrix suffers psychologically and emotionally.
11. In Narender Kumar v. State (NCT of Delhi) [(2012) 7 SCC 171] this Court dealt with a case where the allegation was that the victim of rape herself was an unchaste woman, and a woman of easy virtue. The Court held that so far as the prosecutrix is concerned, mere statement of the prosecutrix herself is enough to record a conviction, when her evidence is read in its totality and found to be worth reliance. The incident in itself causes great distress and humiliation to the victim though, undoubtedly a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The Court further held as under:
"26. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of 'easy virtues' or a woman of 'loose moral character' can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 100/315 cautiously appreciated.
27. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all."
59. It is also contended by the learned Amicus Curiae that absence of injuries on the private parts of the victim is not always fatal to the case of the prosecution. In this regard reference has been made to the following judgments:-
i. Ramdev Singh (supra);
ii. Phool Singh (supra);
iii. Chandraprakash Kewalchand Jain (supra);
iv. Lok Mal @ Loku (supra).
60. At this point, it would be apposite to refer to paragraphs No. 26 of the Judgment rendered in the case of Chandraprakash Kewalchand Jain (Supra), herein below:-
"26. The absence of marks of physical violence on the prosecutrix is not surprising. According to her the respondent had slapped her and threatened her with dire consequences when she tried to resist him on both occasions. Since she was examined almost 24 hours after the event it would be too much to expect slap marks on her person. It is, however, true that according to PW 12 Dr More there were no marks of injury on the body of the respondent when he was examined on the 22nd itself at about 8.45 p.m. While it is true that the version of the prosecutrix is that she had tried to resist him, it must be realised that the respondent being a strong man was able to overpower her and take her by force. Besides, he was a Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 101/315 man in authority in police uniform. The prosecutrix was alone and helpless. In the circumstances as pointed out earlier the resistance would be considerably dampened. But the evidence of PW 12 Dr More who examined the respondent on the 22nd at 8.45 p.m. reveals that he had noticed (i) absence of smegma around the glans penis, and (ii) the frenum tortuous and edematous, indicative of the respondent having had sexual intercourse within the preceding 24 hours. However, absence of marks of violence and absence of matting of pubic hair led the witness to state that no definite opinion could be given whether or not the respondent had sexual intercourse in the last 24 hours. In cross-examination an attempt was made to show that smegma may be absent in a man with clean habits; that the frenum may be edematous if there is friction with rough cloth and tortuousness of the frenum could be due to anything that causes swelling of the skin. The witness, however, said that he had not seen marks of itching thereby negativing the suggestion. Be that as it may, the evidence of this witness does show that there was evidence suggesting the possibility of the respondent having had sexual intercourse within the preceding 24 hours although the witness could not hazard a definite opinion. Therefore, the non-committal opinion of this witness cannot be said to run counter to the evidence of the prosecutrix. It may be that the evidence as to resistance may have been overstated, a tendency which is generally noticed in such cases arising out of a fear of being misunderstood by the society. That is not to say that she was in any way a consenting party. She was the victim of brute force and the lust of the respondent."
61. It would also be appropriate to refer to paragraphs No. 13 of the Judgment rendered in the case of Lok Mal alias Loku vs. State of UP (Supra), herein below:-
"13. Merely because in the medical evidence, there are no major injury marks, this cannot be a reason to discard the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 102/315 otherwise reliable evidence of the prosecutrix. It is not necessary that in each and every case where rape is alleged there has to be an injury to the private parts of the victim and it depends on the facts and circumstances of a particular case. We reiterate that absence of injuries on the private parts of the victim is not always fatal to the case of the prosecution. According to the version of the prosecutrix, the accused overpowered her and pushed her to bed in spite of her resistance and gagged her mouth using a piece of cloth. Thus, considering this very aspect, it is possible that there were no major injury marks."
62. Another issue which has been adverted to by the learned Amicus Curiae is with regard to minor discrepancies in the evidence of the prosecution being harped upon by the defence. It is submitted that the same would have no adverse effect on the case of the prosecution and to the said effect, various Judgments rendered by the Hon'ble Apex Court have been relied upon which are being enumerated herein below:-
i. Bharwada Bhoginbhai vs. State of Gujarat (supra);
ii. Sunil Kumar vs. State Govt. of NCT of Delhi, reported in (2003) 11 SCC 367;
iii. Phool Singh (supra);
iv. Joy Devaraj vs. State of Kerala, reported in (2024) 8 SCC 102;
v. Chandraprakash Kewalchand Jain (supra);
vi. Munshi Prasad vs. State of Bihar, reported in (2002) 1 SCC 351;
vii. Edakkandi Dineshan @ P. Dineshan & Ors vs. State Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 103/315 of Kerela, reported in (2025) 3 SCC 273.
63. The last issue canvassed by the learned Amicus Curiae for the prosecutrix is that defective investigation does not falsify the case of the prosecution and with regard to the same couple of judgments rendered by the Hon'ble Apex Court have been referred to, which are being enumerated herein below:
i. Phool Singh (supra);
ii. Gurmit Singh & Ors. (supra);
iii. R. Baiju vs. the State of Kerala, reported in 2025 SCC Online SC 795;
iv. Edakkandi Dineshan @ P. Dineshan & Ors. (supra);
v. Dhanaj Singh vs. State of Punjab, reported in (2004) 3 SCC 654;
vi. Paras Yadav & Ors. vs. State of Bihar, reported in (1999) 2 SCC 126;
64. Thus, it is submitted that the judgment of conviction and order of sentence rendered by the learned Trial Judge does not suffer from any infirmity and is required to be upheld.
65. The learned Senior Counsel for the appellant no. 1, Sri Surendra Singh, in rejoinder has submitted that there is no shred of evidence that sexual intercourse has taken place in between the prosecutrix and the appellant of the first case. In this connection reference has been made to a judgment rendered by Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 104/315 the Hon'ble Apex Court in the case of Sham Singh vs. The State of Haryana, reported in AIR 2018 SC 3976, paragraph No. 24 whereof is reproduced herein below:-
"24. We find that the trial court and the High Court have convicted the accused merely on conjectures and surmises. The Courts have come to the conclusion based on assumptions and not on legally acceptable evidence, but such assumptions were not well founded, inasmuch as such assumptions are not corroborated by any reliable evidence. Medical evidence does not support the case of the prosecution relating to offence of rape."
66. As regards the submission of the learned APP for the State, to the effect that the appellant of the first case was not arrested since he was M.L.A., it is submitted that at the time he was identified by the prosecutrix, nobody was aware that he was M.L.A., hence such submission is fit to be rejected.
67. Mr. Surendra Singh, has next submitted that even if Exhibit-3 i.e. the provisional matriculation certificate of the prosecutrix is considered to be a public document, the definition of a document mentioned in Section 3 of the Indian Evidence Act, 1872 (for short the 'Act, 1872') is vital, for the purposes of determining the mode and manner of proving such a public document. Section 3 of the Act, 1872 is reproduced herein below:-
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 105/315 "Document- Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter."
68. Thus, it is submitted that any document includes both "Public and Private" document. Reference has next been made to Sections 61, 62, 64, 67, 74, 76 and 77 of the Act, 1872, which are reproduced herein below:-
"61. Proof of contents of documents. -- The contents of documents may be proved either by primary or by secondary evidence.
62. Primary evidence. -- Primary evidence means the document itself produced for the inspection of the Court.
64. Proof of documents by primary evidence.-- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
67. Proof of signature and handwriting of person alleged to have signed or written document produced.
-- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
74. Public documents.--The following documents are public documents: --
(1) documents forming the acts, or records of the acts-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 106/315 (2) Public records kept [in any State] of private documents.
76. Certified copies of public documents.--Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
77. Proof of documents by production of certified copies.--Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
69. The learned Senior Counsel for the appellants has submitted that Section 61 of the Act, 1872 provides that the documents may be proved either by primary or by secondary evidence and the same includes both private and public documents. Similarly, Section 62 which deals with primary evidence also includes both private and public document and similarly Section 64 which deals with proof of document by primary evidence also includes both public and private documents. As far as Section 67 of the Act, 1872 is concerned, the same provides for proving of a signature in case a document is stated to be signed and for the said purpose, the signature on the said document is required to be proved to be in the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 107/315 handwriting of the said person. Thus, it is the submission of the learned Senior Counsel that unless and until the signature is proved, a document cannot be deemed to have been proved. As far as Section 74 of the Act, 1872 is concerned, reference has been made to sub-clause (2) thereof, which deals with public records kept [in any state] of private documents and it is submitted that Exhibit-3 would fall under the said clause inasmuch as section 74 (1)(i) to (iii) would show that Exhibit-3 does not fall within the ambit of the same. Reliance has been placed on Section 76 of the Act, 1872 to submit that in case certified copies of public documents are produced, copies of such documents should contain a certificate written at the foot that it is a true copy of such original document or part thereof, as the case may be, which should be dated and subscribed by such officer, who is issuing the same with his name and his official title as also should contain seal if such officer is authorized by law to make use of a seal. It is stated that Section 77 of the Act, 1872 deals with proof of documents by production of certified copy.
70. The learned Senior Counsel for the appellants has contended that Exhibit-3 is definitely not a certified copy of its original, nonetheless even if it is assumed that the same is an Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 108/315 original copy, then also the signature appended over the same is required to be proved, as per the provisions referred to hereinabove in the preceding paragraphs, otherwise the document shall not stand proved. In this connection, the learned Senior Counsel has referred to the Sarkar's Commentary on the Law of Evidence, 16th Edition, Year- 2007, authored by Sudipto Sarkar and V.R. Manohar and has drawn attention to the chapter pertaining to Section 67 of the Act, 1872, relevant paragraphs whereof are being reproduced herein below:-
"The production of a document purporting to have been signed or written by a certain person is no evidence of its authorship. Hence the necessity of rules relating to the authentication of documents. i.e., proving their genuineness and execution. Proof, therefore, has to be given of the handwriting, signature and execution of a document. In Stamper v. Griffin, 1856, 20 Ga 312, 320 (Am) BENNING, J, said:-
"No writing can be received in evidence as a genuine writing until it has been proved to be a genuine one, and none as a forgery until it has been proved to be a forgery. A writing, of itself, is not evidence of the one thing or the other. A writing, of itself, is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence".
This section refers to documents other than documents required by law to be attested. It says that the signature of the person alleged to have signed a document (ie, execution) must be proved by evidence that the signature purporting to be that of the executant is in his handwriting (see Venkatachala v. Thimmojamma, A 1959 SC 443 post) and the other matter in the document (i.e., Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 109/315 its body) must also be proved by proof of the handwriting of the person or persons purporting to have written the document. Execution is proved by the first (i.e., proof of signature) and the genuineness of the document is proved by the second (i.e., proof of handwriting), unless they are admitted by the other side. The term "execution" is not defined in any statute. It means completion, ie, the last act or acts which complete a document and in English law this is known as "signing, sealing and delivering." The ordinary meaning of executing a document is signing it as a consenting party thereto [Manmatha v. Purna, 29 CWN 539, 552 post). Ss 67-73 deal with primary as well as secondary evidence [Sheikh Karimulla vs. Gudar, A 1925 A 56: 82 IC 306]. As to the various modes of proving the genuineness of a document, see ante section 47. The execution of a document cannot be deemed proved merely because it is proved in the sense of the definition of "proved". That definition in section 3 must be read along with s 67 which requires that there must be specified evidence that the signature purporting to be that of the executant is in the handwriting of the executant. Until this is proved the court cannot proceed to consider whether execution is proved. In other words section 67 makes proof of execution of a document something more difficult than proof of matter other than execution of a document [Salaik v. Tamiz, 107 IC 564: A 1928 A 303]. Original of the public document must be proved in the manner required by the provisions of the Act [C H Shah v. S S Malpathak, A 1973 B 14]. If a document is marked by consent it does not dispense with either the proof of the contents of the document or the truth or otherwise of the contents [Karuppanna v. Rajagopala, A 1975 M 257]. The fact that a document is exhibited only establishes that it has been formally proved. But when the execution of the document is challenged the scribe and the witnesses should be examined. Failure to examine then will result in an adverse inference being drawn [Bhaiyalal v. Ram Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 110/315 Din, A 1989 All 130, 132]. As to proof of documents required by law to be attested, see sections 68-70."
71. Thus, it is submitted by the learned Senior Counsel for the appellants that the execution of a document cannot be deemed to have been proved merely because it is proved in the sense of the definition of "proved" and definition of the word 'document', as postulated in Section 3 must be read along with Section 67 which requires that there must be specific evidence that the signature purporting to be that of the executant is in the handwriting of the executant and until the same is proved, the document does not stand proved. In this regard, reliance has been placed on a judgment rendered by the Hon'ble Apex Court in the case of Neeraj Dutta vs. State (Government of NCT of Delhi), reported in (2023) 4 SCC 731, paragraph no. 60 whereof is reproduced herein below:-
"60. Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence. When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act. Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, the contents of the document must be proved either by the production of the original document i.e. primary evidence or by copies of the same as per Section 65 as secondary Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 111/315 evidence. So long as an original document is in existence and is available, its contents must be proved by primary evidence. It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed. Primary evidence is the best evidence and it affords the greatest certainty of the fact in question. Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence. What is to be produced is the primary evidence i.e. document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents. Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original."
72. It is, therefore submitted that it is amply clear that in case a document is produced as primary evidence, the same is required to be proved in the manner laid down under Sections 67 to 73 of the Act, 1872, hence mere production and marking of a document as an exhibit by the Court, as has been done in the present case, cannot be held to be due proof of its content. Reference has also been made in this regard to a judgment rendered by the Hon'ble Apex Court in the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and Another, reported in (2003) 8 SCC 752, paragraph no. 20 whereof is reproduced herein below:-
"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 112/315 brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 113/315 sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
73. Thus it is submitted that at the very inception when the provisional matriculation certificate was sought to be exhibited as Exhibit-3, the defence had raised an objection, thus the provisional matriculation certificate was marked as Exhibit-3 with objection. Therefore, it is submitted that considering the law laid down by the Hon'ble Apex Court in the aforesaid case of R.V.E. Venkatachala Gounder (supra), it is manifest that an objection with regard to any document being exhibited by the prosecution is directed towards the irregularity and insufficiency of the mode and manner of proving the said document. Hence, it is submitted that the prosecution was required to cure its defect and should have proved the said Exhibit-3 in the manner as postulated under the Act, 1872.
74. The other issue which has been adverted to by the learned Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 114/315 Senior Counsel in his rejoinder is regarding the age of the prosecutrix. It has been submitted by referring to a judgment dated 30.10.2024, passed by a coordinate Bench of this Court in Criminal Appeal (DB) No.550 of 2021 (Mannu Saddam @ Md. Mannu Sadam vs. The State of Bihar), that it is the prosecution which is required to prove the minority of the victim for the purposes of application of POCSO Act, 2012 as also the foundational facts of the alleged offence are required to be proved by the prosecution, before the Court raises the presumption under Sections 29 and 30 of the POCSO Act. It is submitted by referring to paragraph no. 42 of the said judgment that failure on the part of the prosecution to bring on record admissible documents regarding age of the victim despite availability/ feasibility of such documents would lead to the Court drawing an adverse inference against the minority of the victim. In the present case, it is submitted that even the opinion of the Medical Board shows the age of the prosecutrix to be in between 16 to 17 years. It is submitted that on this aspect submissions have already been advanced earlier and the same are reiterated, thus it is stated that there is no proof that the prosecutrix is below the age of eighteen years, hence provisions of the POCSO Act, 2012 shall not apply in the present case. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 115/315
75. As regards, the issue of reliability of the prosecutrix and the issue of there being consistency in the written report, the statement made by the prosecutrix under Section 164 Cr.P.C. and her deposition as PW-2, the learned Senior Counsel for the appellants has submitted that consistency is not a criteria for adjudging the guilt of the accused persons. It is stated that if a lie is repeated several times, the same would not become a true fact and the actual facts will not change. Thus, it is required that the conduct of a person making a statement should also be considered along with the intervening circumstances, so as to arrive at a just conclusion. In this regard reference has been made to a judgment rendered by the Hon'ble Apex Court in the case of Manek Chand @ Mani vs. The State of Haryana, reported in AIR 2023 SC 5600 to submit that though it is true that in a rape case the accused can be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Courts, however if the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix. It has also been pointed out that in a recent judgment, it has also Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 116/315 been held that not only the prosecutrix but the accused also has a right for a fair trial. Thus, it is submitted that in case the statement of the prosecutrix does not inspire confidence and creates a doubt, the Court must look for corroborative evidence.
76. It is thus submitted by the learned Senior Counsel for the appellants that as far as the present case is concerned, the conduct of the prosecutrix has not been that of an innocent girl, but that of a promiscuous girl. It is also stated that the surrounding circumstances would show that even the family members had no concern for the well-being of the prosecutrix, which is manifest from the fact that though she had gone for a birthday party on the evening of 06.02.2016 for one and a half hours, nonetheless no efforts were made to either trace her or seek police help till 9th of February, 2016. Another circumstance which has been highlighted is that the case as put forth by the prosecutrix is highly improbable, inasmuch as the prosecutrix says that she was a virgin and was forcibly raped for one and a half hours, however the medical evidence shows that neither there was any injury on her private parts nor the hymen was freshly torn but it was old torn and her vagina inserted two fingers as also the finding of the Medical Board is that she was used to sexual intercourse, thus the story as put forth by the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 117/315 prosecutrix to the effect that she is a virgin, is false.
77. The other circumstances which have been pointed out by the learned Senior Counsel for the appellants is with regard to the prosecutrix having left home to go to Bharao Par but instead had gone to Ramchandarpur bus stand at Biharsharif, from where she had travelled to Bakhtiyarpur where she had dinner and thereafter, she had sat in a Bolero vehicle with three strange persons, Radha Devi, Sulekha Devi and one 8 to 10 years old girl and gone to Giriyak/Pathra English, nonetheless she had not raised any alarm and had also not persuaded anyone to drop her at her home. Thus, it is submitted that all the intervening circumstances would show that the prosecutrix, who has deposed as PW-2 is not a reliable witness, thus does not fall within the ambit of a sterling witness, hence her testimony is not fit to be relied upon for the purposes of adjudging the guilt of the appellants.
78. It is next submitted that the first medical examination of the prosecutrix was conducted by Dr. Krishna on 09.02.2016 itself, however the same has been withheld and suppressed by the prosecution, inasmuch as the same is against them since neither any sign of sexual intercourse nor any injury on private parts was found qua the prosecutrix. In this regard the evidence Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 118/315 of PW-15 at paragraph no. 73 has been referred to by the learned Senior Counsel for the appellants. Reference has also been made to Section 114, Illustration (g) of the Indian Evidence Act, which is reproduced hereinbelow:-
"114, Illustration (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"
Thus in nutshell it has been submitted that either the story as put forth by the prosecution is false or otherwise the prosecutrix is a consenting adult.
79. The learned Senior Counsel for the appellants has contended that as has already been pointed out, there are serious contradictions in the statement made in the FIR, the statement made by the prosecutrix under Section 164 Cr.P.C. and her evidence by way of PW-2. Therefore, it is reiterated by the learned Senior Counsel/Counsels for the appellants that the judgment rendered by the learned Trial Court is full of errors and therefore, the same is required to be set aside.
80. Besides hearing the learned Senior Counsel for the appellant, the learned Additional Public Prosecutor for the State as also the learned Amicus Curiae appearing for the prosecutrix/ victim, we have minutely perused the evidence both oral and Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 119/315 documentary. Before proceeding further, it is necessary to cursorily discuss the evidence.
81. PW- 1 is the elder sister of the prosecutrix and she has stated in her examination-in-chief that the incident dates back to 06.02.2016. She was told by the prosecutrix that the incident had taken place at Giriyak. PW-1 (elder sister of the prosecutrix) has stated that at the time of incident they were staying at Udwantpuri Mohalla, Professor Colony at Biharsharif. She has also stated that she has two younger sisters i.e. PW-3 and PW-2 (prosecutrix) as also a younger brother and all of them used to stay at the said place for pursuing their education. The said house had been taken on rent and adjacent to her house on the southern side, the house of Sulekha Devi is situated where Sulekha Devi, Chhoti Devi and their family members reside. PW-1 has next stated that she has seen Pushpanjay, Tusi Kumari, Sulekha Devi and Chhoti Kumari staying there and the mother of Sulekha Devi, namely Radha Devi also used to come there sometime. On 06.02.2016, Sulekha Devi and Chhoti Devi had called the prosecutrix for going to a birthday party and had told her that the birthday party is taking place at Bharaopar but the prosecutrix had refused to go to the birthday party, however upon them forcing her, she said that she would ask her sister, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 120/315 whereupon she had asked PW-1 as to whether she can go to the birthday party or not but PW-1 had told her not to go to the birthday party. Thereafter, Sulekha Devi and Chhoti Devi had told PW-1 that they would return within two hours. Subsequently at about 3-4 P.M. in the evening Sulekha Devi, Chhoti Devi, one girl aged about 8-10 years, daughter of Chhoti Devi, namely Tuktuk and the prosecutrix had left the house for going to the birthday party, whereafter they had gone to Ramchandarpur bus stand and told the prosecutrix to sit in the bus, whereupon the prosecutrix had asked them that when they have to go to a birthday party at Biharsharif itself, then why they are going outside, upon which Sulekha Devi and Chhoti Devi told her that they will pick up Nani and then go to the birthday party. All of them had then sat in the bus and gone to Bakhtiyarpur. At Bakhtiyarpur all of the above persons had stayed at Nani's house for 1-2 hours. The name of Nani is Radha Devi. In the meantime all of them had eaten chicken, whereafter Sulekha Devi, Chhoti Devi, Radha Devi, Pushpanjay, Tusi and the prosecutrix along- with one 8-10 years old girl had come out of the house and gone near the vehicle, which was parked there and then Sulekha Devi, Radha Devi and 8-10 years old girl, as also the prosecutrix had sat in the vehicle, but Chhoti Devi, Pushpanjay and Tusi did not Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 121/315 sit in the vehicle. The prosecutrix then told Chhoti Devi that she will not go but everyone made her sit in the vehicle.
82. PW-1 has stated that the prosecutrix had told her that the persons sitting in the vehicle, namely, Sulekha Devi, Radha Devi and 2-3 other persons, whom she does not recognize, did not let her get down from the vehicle. They had left Bakhtiyarpur at about 08:00 P.M., whereafter the vehicle was stopped at one chimney Bhatta and from the said place, Sulekha Devi had made a phone call to someone and had told that they are going to reach soon and when the prosecutrix asked as to where they were, she was told that they were at Giriyak, whereupon the prosecutrix was taken to a house, which was four storied and white in colour. The gate of the said house was opened by 3-4 guards and Sulekha Devi, Radha Devi, 8-10 years old girl and the prosecutrix were taken to the third floor of the said house, where the light was put on by the guards. Thereafter, Sulekha Devi asked the guard whether Sir has come or not, upon which the guard disclosed that Sir has not come and would come after some time. The guard had then ordered for chapati and vegetables on phone. The prosecutrix had then asked that they had to go to a birthday party but here there is no birthday party, upon which Sulekha Devi told her that they have not come to Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 122/315 birthday party but to meet Sir, who is a very good person and he would ask some questions, which you should answer. After sometime, the guard told Sulekha Devi that Sir has come, whereupon Sulekha Devi went to the floor below the floor on which they were seated and after some time she came back to the 3rd floor, where the prosecutrix and Radha Devi were sitting. Sulekha Devi had then taken the prosecutrix to the room where the said person was present.
83. PW-1 has further stated that the prosecutrix has further told her that in the said room one 40-50 years old fat person was drinking liquor, where the said person and Sulekha Devi told the prosecutrix to sit and then the said person had offered drink to them, whereupon Sulekha Devi started drinking but the prosecutrix told her that she would not have any drink. Thereafter, the said person told the prosecutrix to sit on the bed, upon which the prosecutrix started crying and howling, whereupon the said person had put cigarette in her mouth and both the persons started torturing the prosecutrix and told the prosecutrix that if she makes hulla (alarm), they would hand her over to the guards, who will keep her in the room for the whole night and would kill her. Thereafter, Sulekha Devi had tied the mouth of the prosecutrix with her aanchal and made her sit on Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 123/315 the bed, whereafter she removed her clothes as also caught hold of both her hands and then the said person aged about 40-50 years old committed rape with the prosecutrix for 1-1½ hours, while Sulekha Devi was continuously holding the prosecutrix. Thereafter, Sulekha Devi and Radha Devi had taken the prosecutrix to the bathroom for getting fresh and in between Radha Devi had taken the 8-10 years old girl to the said person, whereupon the said person had told that at the moment, she is very young, whereafter Radha Devi and Sulekha Devi had taken the prosecutrix to the third floor of the said house and told the prosecutrix to sleep. The prosecutrix has also told PW-1 that when they had reached the four storied house, it was about 11:00-12:00 P.M. in the night.
84. PW-1 has also stated that after the incident, the prosecutrix was told on the third floor of the aforesaid house not to disclose about the incident to anyone, since the said person is an influential person and she would not be able to do anything. Thereafter, Radha Devi and Sulekha Devi had threatened the prosecutrix that since she has already lost her chastity, now nothing would happen but she would get defamed and get ruined. Thereafter, the prosecutrix kept crying and in the morning at about 04:00 A.M., she heard Radha Devi and Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 124/315 Sulekha Devi talking about exchange of money to the tune of Rs. 30,000/-, whereafter Radha Devi, Sulekha Devi, the said 8-10 years old girl and the prosecutrix had left the said place of occurrence in a white colored vehicle. PW-1 has next stated that the prosecutrix had then told her that the said house is situated at a lonely place and there was LCD TV, table, chair, bed and a window in the room where she was taken. The said people along with the prosecutrix, after leaving the said house at about 04:00 A.M., had gone to Bakhtiyarpur, where they had stayed for 1-2 hours and then from Bakhtiyarpur, Chhoti Devi, Sulekha Devi, daughter of Chhoti Devi, namely Tuktuk, the said 8-10 years old girl along with the prosecutrix had left for Biharsharif. On the way also Sulekha Devi and Chhoti Devi had threatened the prosecutrix and had also lured her by offering money and mobile as also told her not to disclose the incident to anyone, however if she has friends then she can bring them also. The said persons had then dropped the prosecutrix at her house on 07.02.2016 at about 10:00 A.M. in the morning.
85. PW-1 has further stated that at the time when the prosecutrix was dropped at her home, she was not present there, however her sister, PW-3 was present there and at that time she had gone to attend the coaching classes, from where she returned Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 125/315 on 07.02.2016 at about 02:30 hours in the afternoon, whereupon she saw that the prosecutrix was lying there and was crying. PW- 1 had then asked PW-3 as to why the prosecutrix was crying, upon which she replied that she has told her that when sister, PW-1 will come, she would disclose the things to her, however after she had come back, she took bath and since then she is crying. PW-1 is stated to have then asked the prosecutrix as to what had happened and after some time she told that Sulekha Devi and her family members have threatened her and asked her not to disclose anything to anyone. However, after much persuasion by PW-1, the prosecutrix had disclosed about the incident to her in detail. Thereafter, PW-1 had called her father on the said evening and told him that she is unwell, whereafter her father came in the evening of 08.02.2016, whereupon PW-1 told him about the entire incident and upon hearing about the said incident he became mad and started saying as to what would happen since they have an agricultural background. Thereafter, her father had told them to be courageous, since whatever had to happen has already happened, however those who have committed wrong will not be spared. On 09.02.2016 at about 10:00 in the morning, the prosecutrix, her father, namely Jagarnath Prasad along with PW-1 had gone to the Mahila Police Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 126/315 Station, where the prosecutrix had narrated the incident and PW- 1 had scribed the same, whereupon the prosecutrix had read the same and put her signature over the same, since the prosecutrix was at that moment of time not in a position to write herself, PW-1 has identified the F.I.R. (written report), which is in her writing and was read over to the prosecutrix, whereupon she had made her signature which PW-1 has recognized and has said that the prosecutrix had put her signature on the written report in her presence.
86. PW-1 has stated that the written report bears her as also her father's signature, which has also been recognized by PW-1. The written report has been marked as Exhibit-1, the signature of the prosecutrix has been marked as Exhibit-1/A, signature of PW-1 has been marked as Exhibit- 1/B and signature of the father of PW-1 has been marked as Exhibit-1/C. PW-1 has stated that her statement under Section 164 of the Cr. P. C. was recorded in the Court. PW-1 has recognized her statement which was read over to her, whereupon she had put her signature, which has also been recognized by her and the same has been marked as Exhibit-2. She had recognized the accused Chhoti Devi, Tusi Devi, Radha Devi, Sulekha Devi, Pushpanjay and Rajballabh Prasad, standing in the dock. The Court had put a Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 127/315 question to PW-1 as to whether she had seen Rajballabh Prasad @ Rajballabh Yadav earlier, to which PW-1 had answered that she had not seen him earlier but after the incident she had seen his face in the newspaper & T.V.
87. In her cross-examination PW-1 has stated that at the time of occurrence the prosecutrix was student of Class X th. She has also spelled out details of her family members and particulars about the places where her sisters and brother study. PW-1 has also stated that she and her sisters and brother also attend coaching. PW-1 has next stated that her statement was recorded by the Magistrate under Section 164 Cr.P.C., however she does not remember whether in the said statement she has stated that she used to visit the house of Sulekha Devi since she was having good relations with her. PW-1 has stated in her cross examination that in the house in which she was staying on rent at the time of incident at Garhpar, two other tenants were also staying. In one portion, one auntie, whose name she does not know was staying while in the other portion, two girls were staying in a room, one of whose name is Preeti Kumari but she does not know the name of the other girl. The said two girls were aged about 16-17 years, both were studying and out of them one was in XIth Class while the other one was in XII th Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 128/315 Class. PW-1 has said that she was having good relation with the said two girls and they were knowing that the prosecutrix had gone to attend a birthday party. PW-1 has also stated that when the prosecutrix did not return back late in the evening, she had not disclosed the said fact to the said two girls but had told auntie about the same because she is like a guardian to her. PW- 1 has next stated in her cross examination that when the prosecutrix did not return till late in the evening then she had gone to the house of Sulekha Devi for enquiring, however on the first occasion the house was locked but when she went for the second time, 'Mausi' (maternal aunt) was present but she does not know her name. PW-1 has also stated that when the prosecutrix did not return till late in the evening, she got mentally disturbed but she had not disclosed the said fact to her father on the said day since she was very much disturbed and the health condition of her mother was also not good.
88. PW-1 has also stated that she had not given phone to her sister i.e the prosecutrix since Sulekha Devi was going along with her as a guardian. PW-1 has next stated that her statement was recorded by the Magistrate after 9 days i.e on 15.02.2016 and she was brought to the Court by the police. She had gone to the Police Station on her own where she had met a police officer Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 129/315 namely, Mridula madam and from there the police had taken her to the Court. PW-1 has further stated in her cross examination that in her statement made before the Magistrate, she had disclosed that Sulekha and Chhoti had dropped the daughter of Chhoti at Bakhtiyarpur and then had taken the prosecutrix by Bolero vehicle to Giriyak along with 8-10 years old girl and then they had gone to the 3rd floor of the house situated there. The statement made by PW-1, under Section 164 Cr.P.C. before the Ld. Magistrate, had also been put to her to draw her response. In paragraph no. 60 of her cross-examination PW-1 has stated that when the prosecutrix did not return back to the house till late in the night she was disturbed but she had not informed anyone and on the next day in the morning at about 07-08 a.m. she had woken up, whereafter she had gone to the coaching in between 9-10 a.m. PW-1 has also stated that she does not remember whether on the said day she had seen the landlord namely, Bishundeo Babu however, she stated that she had not told him that the prosecutrix had not returned back to home, nonetheless she had disclosed the factum of the prosecutrix not returning back to home to aunty, before going to the coaching class.
89. In paragraph no. 61 of her cross-examination, PW-1 has Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 130/315 stated that till the time she was at her coaching, she had not asked anyone as to whether the prosecutrix had returned back to house or not and till then she had not told anyone or the police about the prosecutrix having not returned back to the house. In the evening, PW-1 rang her father but had not told him about the prosecutrix having not returned back to home. PW-1 has also stated that she had not taken the help of any doctor for treatment of the prosecutrix but had taken help from auntie, who had given 1-2 medicine. In paragraph no. 65 of her cross examination, PW-1 has stated that on 10.02.2016, she had gone to the Mahila Police Station in the afternoon along with her father and the prosecutrix where they had met Mridula madam who had made them sit there and while she had returned back to home, her father and the prosecutrix came back after investigation, in the evening, whereafter they had again gone for investigation after one hour but did not return in the said night. PW-1 has also stated that on 11.02.2016, father of PW-1 along with prosecutrix had come back to the house before noon. In fact, father of PW-1 had come from Sultanpur to Biharsharif before noon but he did not come to the house and he returned back to the house along with the prosecutrix in the evening of the same day, after investigation at about 4-5 p.m. and in the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 131/315 night they had stayed there. In paragraph no. 68 of her cross examination, PW-1 has stated that on 07.02.2016, when the prosecutrix had returned back to her house, she had not gone to the house of Sulekha Devi to enquire about the incident and she had not disclosed about the incident to anyone except her father. PW-1 has also stated in her cross-examination that she had stated before the police that after the incident the accused told the prosecutrix on the third floor of the said house not to disclose about the incident to anyone since he (Rajballabh Yadav) is a big person and she will not be able to do anything, whereafter Radha Devi and Sulekha Devi had scared the prosecutrix by saying that now her chastity had gone, hence nothing will happen and you will be defamed as also ruined, whereafter the prosecutrix kept on crying for the whole night and in the morning at about 04:00 a.m. she saw that Radha Devi and Sulekha Devi were talking about a deal of Rs. 30,000/-.
90. PW-2 is the prosecutrix who has stated in her examination
-in-chief that she has filed the present case and the occurrence dates back to 06.02.2016, at about 03:00-04:00 in the evening. At that time, she was staying on rent in the house of Bishundeo Prasad situated at Professor Colony at Biharsharif. Altogether four persons were staying there i.e., PW-1, PW-3, the brother of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 132/315 the prosecutrix and the prosecutrix. At that time, when the prosecutrix was at her home, Chhoti Devi came there to call her and after taking the prosecutrix to her house, she asked if she would go to a birthday party, whereupon the prosecutrix refused but Chhoti Devi started persuading her to go to the birthday party and told her that if she did not go, she would feel bad, whereafter Sulekha Devi also started pressurizing her and told her that if she does not go, her friend will feel bad and she will also not go. After much persuasion, PW-2 (prosecutrix) said that she will have to ask her sister and when she asked her sister, she told her not to go to the birthday party, whereafter Sulekha Devi and Chhoti Devi both came and started persuading the sister of prosecutrix, i.e PW-1 and told her that they would come back by evening. After much persuasion, sister of PW-1 allowed her to go, whereafter Chhoti Devi, Sulekha Devi, one 8-10 years old girl and daughter of Chhoti Devi, namely Tuktuk took the prosecutrix to Ramchandarpur where they told her to climb a bus, whereupon the prosecutrix told them as to why they are getting on to a bus, to which they said that they have to pick up Nani who will also go to the birthday party. PW-2 had then asked as to from where Nani is to be picked up then they said that she has to be picked up from Bakhtiyarpur. Thereafter, the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 133/315 bus stopped at Bakhtiyarpur bus stand and all of them got down. Chhoti Devi and the prosecutrix sat on one rickshaw, while Sulekha Devi and the young child had sat on the other rickshaw. Then they reached a house situated at Ranisarai, where Tusi Devi, Radha Devi and Pushpanjay were present and they had stayed there for 1-1/2 hours. At that place Nani and Chhoti had served chicken to all of them and then they said that now they will go to the birthday party and eat there. Thereafter, Sulekha Devi asked her mother as to where the vehicle is standing, whereupon the mother of Sulekha Devi told her that she would go out and see, whereafter she went outside, saw and came back and said that the vehicle is standing on the road. Then Sulekha Devi, her mother, Chhoti Devi, Pushpanjay, Radha Devi, 8-10 years old child and the prosecutrix had gone near the vehicle standing on the road. Three male persons were sitting in the said vehicle. Thereafter, Radha Devi and 8-10 years old child had sat in the vehicle and the prosecutrix was also told to sit there but she said that she will not go if Chhoti Devi does not come along with her, whereafter Sulekha Devi had sat in the vehicle and then Tusi Devi, Pushpanjay and Chhoti told her that there is no space in the vehicle, hence they would come by another vehicle.
91. PW-2 has further stated that the vehicle in which she was Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 134/315 sitting had stopped at chimney bhatta after about 2-2 ½ hours where Sulekha Devi had got down and talked over the mobile phone and had wished the person on the other end and told him that they would reach within 10 minutes and then she sat on the vehicle. After 5-10 minutes of the vehicle having plied and thereafter, having moved over the earthen road for some time, the vehicle stopped at one four storied house, which had a red colored gate and then one person came and opened the gate as also wished Sulekha. The house was empty from within and inside 4-5 guards were present, who also wished Sulekha, whereafter Sulekha Devi took the prosecutrix and others to the third floor of the said house and after climbing the stairs Sulekha Devi started searching for the light switch and upon not finding the same she said that it appears that the switch has been changed since earlier it was present there, whereupon one person came from down stairs and lit the light and told them to sit there. On the 3rd floor the structure was like a hall where one round table and one cot was present. Thereafter, one person from downstairs had brought food. The prosecutrix had then asked Sulekha Devi as to where they had come, then she said that they had come to Giriyak, whereupon the prosecutrix asked her as to why she has brought her to Giriyak since they were to Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 135/315 go to a birthday party, whereafter she told her that they had not come to a party but have come to meet one Sir who is very good. Then Sulekha Devi had eaten food and also had forced the prosecutrix to eat food. After eating food, Sulekha Devi and Radha Devi said that Sir has not come, hence let us go to the fourth floor, whereafter they had gone to the roof, where prosecutrix was told that all the land situated nearby belongs to Sir. Thereafter, prosecutrix was brought to the third floor and then Sulekha Devi had gone downstairs from the third floor and after returning back, she said that Sir has not come, hence she should sleep. After some time, Radha Devi again went down and after coming back she said that Sir has not come but after some time one person came from downstairs and said that Sir has come and is calling them, whereafter Sulekha Devi took the prosecutrix to the second floor of the said building where one person aged about 40-50 years was drinking liquor, who was fat and black in color and he was sitting on a chair in a room and two chairs were empty as also the room contained one bed and one LCD as also fruits were kept in the room. The said person asked Sulekha Devi to drink liquor, whereupon she started drinking liquor and then the prosecutrix was also offered liquor but she objected, whereupon Sulekha Devi told him that the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 136/315 prosecutrix does not drink liquor.
92. PW-2 has next stated that the said person then started smoking cigarette and told the prosecutrix to smoke cigarette, whereafter Sulekha Devi started smoking cigarette and then the said person had inserted cigarette in the mouth of the prosecutrix. In between, Radha Devi had arrived there along with the 8-10 years old child and after looking at her the said fat black person said that she is very small, whereafter Radha Devi took the said child and went away. Sulekha Devi and the said person had then asked the prosecutrix to sit over the bed, whereupon she asked as to why she should sit on the bed, whereafter Sulekha Devi and the said person had forcibly made the prosecutrix sit on the bed leading to the prosecutrix protesting by throwing her hand and legs but the said person had caught her and then Sulekha Devi had undressed her as also had caught hold of her and in the meantime the said person had undressed himself. Upon the prosecutrix raising protest, they said that they would hand her over to the servants who would keep her for the entire night. Thereafter, the said fat and black person committed rape with the prosecutrix and when she was trying to protest, Sulekha Devi had caught her and had inserted Anchal of Saari in her mouth. The said person had committed Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 137/315 rape with the prosecutrix for 1-1½ hours and had then left her, however the prosecutrix was not able to get up since she had no energy left, whereafter Sulekha Devi had helped the prosecutrix, made her wear clothes and had then taken her to the third floor, where she was taken to the bathroom and was told to get fresh. After the prosecutrix had got fresh and had come out of the bathroom, she saw that Sulekha Devi and Radha Devi were not present there but they came there after some time, whereupon Sulekha Devi told her to sleep and then prosecutrix had lied down but she was not feeling sleepy. In the meantime, Sulekha Devi and Radha Devi started talking about a sum of Rs. 30,000/- and were saying that this time less amount has been paid to them, however during Holi they will bring another girl when they would get more money.
93. PW-2 has further stated that at about 4:00 A.M. in the morning they had brought the prosecutrix by the vehicle standing in the said house to Bakhtiyarpur and on the way they had threatened her by saying that the said person is a big person, hence nothing will happen to him but her prestige would be dented, hence she should not disclose anything to anyone. When they reached Bakhtiyarpur, the prosecutrix asked Chhoti Devi as to why she had brought her to the said place for doing such Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 138/315 things, whereupon Chhoti said that all these things keep happening, her friends have also come and she can also bring her friends. Chhoti also disclosed that they engage in such type of activities and earn money, hence they are staying comfortably. Thereafter, they came by auto to the bus stand. Then Sulekha Devi, Chhoti Devi, 8-10 years old child and the prosecutrix came to Biharsharif by bus and on the bus Chhoti and Sulekha Devi told the prosecutrix not to disclose about the incident to anyone, nonetheless asked her whether she wants money and mobile phone. Thereafter, they reached Ramchandarpur bus stand situated at Biharsharif and from there they came to Professor Colony by Rickshaw, where the prosecutrix was dropped at her house. At the time when the prosecutrix came back to her house, her sister, PW-3 and brother were present there and when she was crying, her sister asked her as to what had happened but she did not disclose anything and then she took bath and washed her clothes. By then it was time to go for tuition, hence sister of the prosecutrix asked her to go for tuition but she said that she would not go because she does not want to study and instead, she would prefer dying. In the evening, her sister, PW-1 had come and after persuading the prosecutrix to disclose as to what had happened, the prosecutrix Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 139/315 had told her about the entire incident, whereafter her sister also started crying and became nervous and in the night sister of the prosecutrix had called her father and told him that the prosecutrix is ill, whereupon father of PW-2 came in the evening of 08.02.2016, when the sister of PW-2 told her father about the entire incident and upon her father asking her, she had again narrated the entire incident to her father, after which her father started crying and became nervous. Then the prosecutrix along with her father and sister (PW-1) had gone to the Police Station where the police had given her a plain paper and told her to write about the incident and give it, whereafter the prosecutrix narrated the incident and sister (PW-1) had written down the same. PW-2 has identified the written report, penned in the writing of her sister. The prosecutrix has also stated that after her sister had written the written report, she had read it and finding the same to be correct, she had made her signature over the same. In fact, her father and sister had also signed the written report of the prosecutrix which she has recognized and the same has already been marked as Exhibit-1. Thereafter, the written report was handed over to the Officer-in-Charge, Mahila Police Station, over which the police personnel had written something and then had made enquiry from the prosecutrix. The Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 140/315 prosecutrix was then sent along with the police to the hospital, whereafter her medical examination was conducted at the Sadar Hospital and after coming out of the hospital she saw her sister and father, whereupon they had gone to the Police Station.
94. The prosecutrix has further stated that her statement was recorded in the Court by a Lady Judge, which she has recognized upon being shown to her as also she has stated that the same bears her signature, which has also been recognized by her and over the same she had written- "read and found the same to be correct". The inscription made by the prosecutrix on the statement made by her under Section 164 Cr.P.C. to the effect "read and found to be correct" as also the signature made by her over the same has been marked as Exhibit-2/A. The prosecutrix was then taken to the Police Station, from where she had gone to her house. PW-2 has further stated that on 10.02.2016, she was called for investigation and she had gone to the place named by her, along with the police. They had gone to Giriyak, where search was made extensively but no such four storied house was found, whereafter in the evening they had returned back to the police station and from there to home. On 11.02.2016, the prosecutrix was again called for investigation and then she had gone along with the police for investigation, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 141/315 whereafter search was made at Giriyak but after some time they had gone ahead of Giriyak and there the prosecutrix had recognized the Chimney Bhatta where she had stopped alongwith Sulekha Devi. Thereafter, they had moved onward over the earthen road and after going ahead for some distance she had recognized the four storied house. After moving ahead for some distance, she had seen the said fat black person strolling there, who had committed rape with her, whereafter she had told the police accompanying her about the incident. They had then returned to the road, where the police had asked the people present there about the owner of the said house, whereupon they had said it belongs to Rajballabh Prasad @ Rajballabh Yadav, who is M.L.A. and then they had disclosed the name of the village to be Pathra English, Nawada. After going ahead for some distance, the prosecutrix had seen the said person in a poster and then she told the police, by pointing towards the poster that he is the person and then they had gone to the Biharsharif Police Station. PW-2 had recognized Sulekha Devi, Chhoti Devi, Radha Devi, Pushpanjay, Rajballabh Yadav and Tusi Devi who were standing in the dock. PW-2 had submitted her 10th class provisional certificate, in which her date of birth has been shown as 04.01.2000, which has been marked Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 142/315 as Exhibit-3 with objection.
95. In her cross-examination, PW-2 has stated that she does not remember as to whether the provisional certificate submitted today was shown by her to the police or not. PW-2, has further stated in her cross-examination that it is wrong to say that she was neither taken by someone to the house and place where the incident had taken place, about which she has disclosed in her statement made before the Court nor any such incident had taken place and on the contrary conspiracy was hatched by the police officers at the instance of the political opponents of Rajballabh Prasad @ Rajballabh Yadav and she had then come to the Court. PW-2 has next stated that she had stated before the police that when she was not able to get up after the incident, since she was having no strength in her body, then Sulekha Devi had made her stand up and had also made her wear the clothes. In paragraph no. 32 of her cross-examination, PW-2 has stated that in her re- statement made before the police officer, she had said that while going from the place of occurrence to Bakhtiyarpur, the accused were telling her that he (Rajballabh Yadav) is a big person and nothing would happen to him, however her reputation will be damaged. She has also stated that in the said statement she had also said that when she came to Bakhtiyarpur, she asked Chhoti Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 143/315 that she had brought her for getting such things done, whereupon she said that all these things keep happening and nothing will happen as also she said that her friends had also come and she should also bring her friends, whereafter she also told her not to tell her mother and father at her home about the said incident and they are engaged in such type of work, from which they earn money and that is why they live comfortably. She also stated that thereafter, they came on an auto to the bus stand and she, Sulekha Devi, Chhoti and the said 08-10 years old girl came to Biharsharif by bus.
96. PW-2 has stated that she had also stated in her said statement that she along with Chhoti Devi had boarded one rickshaw and on the other rickshaw, Sulekha Devi and the said 08-10 years old girl were sitting. She has next stated in her statement that on the rickshaw, Chhoti Devi was telling her that after going home she should take bath and wash her clothes, whereafter they had left her at home. In paragraph no. 39 of her cross-examination, PW-2 has stated that she had started her studies at the Primary School, Sultanpur from the third-fourth class and on the date of occurrence, she was enrolled in another school i.e. High School at Rahui but she did not use to go there regularly for studying and was staying at Biharsharif since 4-5 Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 144/315 months prior to the incident while her both elder sisters and brother were staying at Biharsharif from few days back and she had come, thereafter. She has also stated that she had come to Biharsharif along with her father and along with him she had gone to the coaching of Subodh Sir and got herself enrolled there. She has next stated that she used to go alone to her school at Rahui sometimes. She has also stated that while staying at Biharsharif, she did not use to go to market or any other place and she used to only go from her residence to Subodh Sir. In paragraph no. 40 of her cross-examination, PW-2 has stated that she is not having any knowledge of other mohallas of Biharsharif. She had asked Chhoti Devi and Sulekha Devi as to where they have to go, whereupon they had said that they have to go to Bharaopar, however, before going she was not knowing as to how much time it would take to go to Bharaopar. She has next stated that while going by rickshaw to Ramchandarpur, it did not come to her mind that on the way Bharaopar is written anywhere or not. She has also stated that before the incident she had not gone to Ramchandarpur Bus Stand. PW-2 has also stated in her cross-examination that at the time the Bus had left Ramchandarpur Bus stand on the date of incident at about 4:00- 4:15 p.m., Chhoti Devi and Sulekha Devi were having mobile Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 145/315 but she was not remembering the mobile number of her sister, hence she had not asked them to call her sister over the mobile phone. In fact she was neither remembering the mobile number of her father nor that of her neighbours nor that of any relative.
97. PW-2 has next stated in her cross-examination that at the house at Bakhtiyarpur, where she had gone, they had eaten food normally and there was no tension but there she had asked Sulekha and Chhoti that if they were having her sister's mobile number, they should call her but they said that they don't have her number. In paragraph no. 41 of her cross-examination, PW-2 has stated that she had sat in the middle row of the vehicle in which she had gone to Bakhtiyarpur along with Sulekha and Radha Devi. One male person was sitting beside Radha Devi and in the back row nobody was sitting while in the front, apart from the driver one more person was sitting there and the said persons told her that they are going to a birthday party at Biharsharif. She has stated that she does not know that vehicle can go from Bakhtiyarpur to Giriyak via Biharsharif. She has also stated that after starting from Bakhtiyarpur, she did not know as to on the way which places had passed by, however she was awake in the vehicle. She has also stated that she was not able to know as to whether the way through which she had gone by bus from Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 146/315 Biharsharif to Bakhtiyarpur was the same way through which they had returned because she could not see anything outside through the glass. She has stated that it had taken 1 - 1½ hours to go to Biharsharif from Bakhtiyarpur and while returning from Bakhtiyarpur, she had asked the females sitting there as to when they would reach Biharsharif, whereupon Sulekha Devi told her that they are going to reach very soon, however the vehicle kept on moving for half an hour, thereafter and during the said half an hour she kept on asking them about reaching Biharsharif, whereupon they said that since they were taking a different route, delay was taking place. The vehicle had then stopped directly at Chimney, after leaving Bakhtiyarpur but on the way no railway crossing was seen by her and when the vehicle had stopped at the Chimney she kept sitting in the vehicle and only Sulekha Devi had alighted from the vehicle and gone outside while other people were sitting inside the vehicle and it was calm outside at the Chimney, however she cannot say whether the Chimney was open or not or surrounded by boundary.
98. PW-2 has next stated that by that time she could not know as to whether she is at Biharsharif or she has crossed Biharsharif, however the vehicle left that place after 5-6 minutes and the vehicle had stopped outside the house about which she has told Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 147/315 earlier but the vehicle did not go inside, even after the gate was opened. PW-2 has also stated that when they had proceeded from the Chimney, Sulekha Devi had told her about the board of Giriyak, however she could not know as to whether they have crossed Biharsharif or not and she thought that after crossing Giriyak, they would reach Biharsharif. PW-2 has also stated in her cross-examination that her sister was not knowing their (accused) number, hence her call had not come, however after she had gone to the said four storied house in question, she sensed that those people have not brought her to the birthday party and while she was enquiring from Sulekha Devi, she felt that all the persons present there belonged to that place, thus she neither raised any hulla (alarm) nor made any protest. In paragraph no. 43 of her cross-examination, PW-2 has stated that though her sister had asked Sulekha Devi and Chhoti Devi about the name of the friend in whose birthday party they were going, they said that they have neither seen their friend nor they recognize them. In paragraph no. 46 of her cross-examination, PW- 2 has stated that the police had taken her to the house at Bakhtiyarpur for investigation. In paragraph no. 47 of her cross- examination, PW-2 has stated that the police had not taken her inside the house where wrong was committed with her. In Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 148/315 paragraph no. 49 of her cross-examination, PW-2 has stated that firstly she went inside the room in which the accused was sitting and drinking liquor and had sat there on a chair where she kept sitting on the chair for 10-15 minutes and while she was sitting on the chair, the accused had put a cigarette in her mouth. She has stated that before entering into the said room she did not suspect that any wrong will be committed with her. Thereafter, Radha Devi had brought the said small girl in the room and had said something to the accused, whereupon he said that she is small at the moment, whereafter the prosecutrix suspected that something wrong might happen with her and then she got up from the chair and tried to come out. She has also stated that when the accused was putting cigarette in her mouth, he had held one of her hands to which she had objected by trying to remove the hand of the accused from her hand, however she neither used her nail nor bit the accused by her teeth because Sulekha Devi was telling her not to make noise.
99. In paragraph no. 50 of her cross-examination, PW-2 has stated that just after stuffing cigarette in her mouth, the accused while holding her hand had taken her on the bed, however she did not remove the hands since Sulekha Devi and Rajballabh Yadav were holding her hands. She also did not use her legs, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 149/315 however on account of holding of her hands she was having pain in her arms. In paragraph no. 51 of her cross-examination, PW-2 has stated that when Sulekha Devi had removed her clothes from her lower portion, she had kicked by her legs. She has also stated that she had not received any injury on account of the accused having held her hands. She has also stated that while she was objecting to her clothes being removed, her clothes did not get torn. In paragraph no. 54 of her cross-examination, PW-2 has stated that during the entire occurrence, Sulekha Devi had stuffed cloth in her mouth and was holding it, leading to she being suffocated, however she did not become unconscious. In paragraph no. 56 of the cross-examination, PW-2 has stated that after being raped, she was immediately lifted from the bed by Sulekha Devi and she had made her wear clothes. Thereafter, Sulekha Devi had taken her to the bathroom at the third floor where she had freshened up, washed her face and hands as also washed her blood-stained clothes and had also washed blood stains from the salwar suit and from her body, however she has stated that blood was not present over her Salwar. In paragraph no. 57 of her cross-examination, PW-2 has stated that in the morning when she left for Bakhtiyarpur, she could not know as to whether the way through which she was going was the same Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 150/315 through which she had come. She has also stated that in the morning while sitting in the vehicle or leaving the place on the vehicle in question, she did not raise any alarm because no person was present there. She has next stated that while returning, apart from the driver sitting in the vehicle, two women and one small girl were also sitting. PW-2 has stated that she, Radha and Sulekha and the said small girl were sitting in the middle row and on the way, she did not see any board of familiar place because at that time she was having headache and there she could know about only one place i.e. Bakhtiyarpur, however she could not know about other places.
100. PW-2 has next stated in paragraph no. 58 of her cross- examination that she had not returned back by the vehicle by which she had gone to the place of occurrence but she had returned back by another vehicle, being driven by a different driver, however she does not remember the registration number of the vehicles in question. In paragraph no. 59 of her cross- examination, PW-2 has stated that after getting down at Bakhtiyarpur, she had not raised any hulla (alarm) because she had been severely threatened in the vehicle. She has also stated that she had come from the house situated at Ranisarai on an auto along with Sulekha and Chhoti to the bus stand and the said Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 151/315 small girl was also along with them. In the auto also she did not disclose about the incident to the auto driver and did not tell him to go to the police station. She has next stated that while coming from Bakhtiyarpur to Biharsharif, she had not disclosed about the incident to any staff or passenger of the bus because at that time Sulekha Devi and Chhoti Devi were talking about giving mobile and money to her as also were threatening her. She had also not raised hulla (alarm) at the bus stand because nobody known to her was present there. In paragraph no. 60 of her cross- examination, PW-2 has stated that after returning home she had gone to the bathroom where she had washed her clothes and after washing the clothes the blood stains over the same had been removed inasmuch as she had used soap to wash the clothes. In paragraph no. 68 of her cross-examination, PW- 2 has stated that on 09.02.20216, police had not come to her house at Garhpar but the police had come to her house on 10.02.2016. In paragraph no. 70 of her cross-examination, PW-2 has also stated that on 10.02.2016 the Police officer took her to Giriyak, after she had disclosed about the said place, however the police vehicle did not stop at Giriyak Police Station but she was taken to Giriyak Bazar for investigation and then to the main road at Giriyak but she could not find any four storied house nor any Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 152/315 three storied house.
101. In para no. 71 of her cross-examination, PW-2 has stated that on 11.02.2016 police had taken her from the police station to the main road situated at Giriyak and after travelling on the main road of Giriyak for some time, PW-2 had shown the way to the police and taken them to the place where lot of Chimneys were present but the police did not make any enquiry there. In paragraph no. 72 of her cross-examination, PW- 2 has stated that the police personnel had made enquiry from 2-4 persons while sitting in the vehicle. In paragraph no. 73 of her cross- examination, PW- 2 has stated that she had subsequently shown the chimney to the police where she was brought and there they had stayed for 10-15 minutes. In paragraph no. 74 of her cross- examination, PW-2 has stated that the police had enquired from the people near the Chimney about the house regarding which she had given details to the police but nobody could tell about the said house. The police had also made enquiries in the market about the four-storied house. Thereafter, police vehicle had gone to the road situated in front of the said house and had stopped at a short distance from the door of the said house and then it had moved ahead and had again stopped before reaching the door, at a distance of 40-50 feet prior to the door, where she had seen the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 153/315 accused strolling at a distance of 2-3 feet after the door. After identifying the said person (accused) and the house the vehicle had turned immediately and at that time no other persons were present there but were moving behind. From there, the police vehicle had, after taking a turn, reached three corned road (Tiraha) and enquiry was made by the police from the people present there. On the way back it took 1-2 minutes to come on the main road from the Chimney and at that time it was 4:00- 4:15 in the evening from where they had gone to Nawada, where they reached at around 5:00-5:30 in the evening and then they had returned back to Biharsharif Mahila Thana at around 7:00- 7:30 in the evening.
102. In paragraph no. 76 of her cross-examination, PW-2 has stated that on 13.02.2016 she had gone to the police station with her father and sister at around 10:30 in the morning where senior police officials had come and in their mobile phone, the photo of the accused was loaded which was also shown to her. On the mobile phone she was shown photographs of 4-5 persons and the entire event was being video graphed, C.D. whereof has also been produced in the Court which has been marked as "X" for identification. In paragraph no. 89 of her cross-examination, PW-2 has denied that on the date of occurrence her age was Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 154/315 more than 18 years and that she has deliberately disclosed her age to be less and that in the school certificate also she and her guardian have wrongly mentioned the age. In paragraph no. 91 of her cross-examination, PW-2 has stated that it is wrong to say that the Mb. No. 7856940431, mentioned in the FIR belongs to her and used to remain with her and on the date of occurrence i.e on 06.2.2016 and 07.02.2016 the said mobile was with her as also she had talked with other people on the said day. In paragraph no. 97 of her cross-examination, PW-2 has stated that on 06.02.2016, when she had gone through the earthen road to the house where the said occurrence had taken place, at that time the road was lonely and all the shops were closed as also it was a dark night and on account of it being dark she could not see as to whether in between the earthen road and nearby the house where the occurrence had taken place, any other house was situated or not. In paragraph no. 100 of her cross-examination, PW-2 has stated that on 07.02.2016 she had only enquired from Chhoti while returning from the place of occurrence to Bakhtiyarpur, however she had neither engaged in any assault nor had quarrelled with her. In paragraph no. 101 of her cross- examination, PW-2 has stated that upon returning to her house from Biharsharif, she did not disclose about the occurrence to Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 155/315 her second elder sister since she was thinking that when her elder sister would come, she would tell her as also she was crying profusely and she did not want to narrate the same incident several times, hence she had told both her elder sisters about the said occurrence when they had come together.
103. In paragraph no. 105 of her cross-examination, P.W. 2 has stated that in the matric examination, she has secured 62% and the said examination had started from 12.3.2016 and ended on 17/18.03.2016, whereafter practical examination was held. PW-2 has also stated that she is not married and prior to the said incident no injury much less major injury had taken place qua her and prior to the said incident no physical atrocity or incident of rape had taken place with her. In paragraph no. 118 of her cross-examination, PW-2 has stated that she does not know the name of the husband of Sulekha Devi and she has not named the husband of Sulekha Devi, namely Arun Kumar in the FIR. In paragraph no. 119, PW-2 has stated that she was knowing Pushpanjay, since 1-2 months prior to lodging of the said case.
104. PW-3 is the sister of the prosecutrix and she has stated in her evidence that the prosecutrix is her younger sister and the occurrence had taken place on 06.02.2016 at about 4 p.m. in the evening when she was at her rented house situated at Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 156/315 Udwantpuri, Garhpar, Professor Colony. PW-3 is stated to be staying along with her elder sister, i.e. PW-1, the prosecutrix and brother. PW-3 has further stated that Sulekha Devi and Chhoti had come at her room and had said that they have to go to birthday party, however the prosecutrix had refused to go, whereafter Chhoti had insisted, whereupon the prosecutrix had asked her sister and then PW-1 had given permission to her. Thereafter, the prosecutrix at around 4 p.m. in the evening along with Sulekha Devi, Chhoti and one small child had left the house. On the said night the prosecutrix had not returned back to home. On 07.02.2016 at about 10:00 A.M. in the morning, the prosecutrix returned back and had started crying, whereupon she asked her as to what is the matter, whereafter she told that when PW-1 comes, she would disclose. The prosecutrix had then taken bath and cleaned her clothes and then PW-1 had come and asked her as to why she was crying, whereupon the prosecutrix told her that Sulekha had not taken her to birthday party but had taken her to Ramchandarpur bus stand, made her sit in a bus and then taken her to Bakhtiyarpur to her mother's place where Pushpanjay, Radha Devi and Tusi Devi were present and then Radha Devi had offered chicken to all the people present there which they had eaten. Thereafter, the prosecutrix was made to sit Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 157/315 in a Bolero vehicle in which three persons were sitting from before and then Sulekha Devi, Radha Devi and the small child had also sat in the said vehicle. The vehicle had then stopped at one Chimney bhatta, whereafter Sulekha Devi got down from the vehicle and made a call and then they had reached one white colored, four storied building, where the prosecutrix was taken by Sulekha Devi to the 3rd floor of the said building, where they ate chapati and vegetable and slept, thereafter. At about 12 in the night, the prosecutrix was taken by Sulekha Devi to the 2 nd floor of the said building where in a room one fat and black colored person, aged about 40-50 years was sitting, who was wearing Kurta-Pajama and was drinking liquor. Thereafter, Sulekha Devi had wished the said person, whereupon the said person had told them to sit there and asked Sulekha Devi to drink liquor, whereafter Sulekha Devi started drinking liquor. The said person had also asked the prosecutrix to drink liquor but she had refused. Thereafter, Sulekha Devi had made the prosecutrix sit on the bed and then the said black person, who was smoking cigarette had also sat on the bed and had told the prosecutrix to smoke cigarette but she had refused and then Sulekha Devi had removed the salwar of the prosecutrix and caught hold of her as also put a cloth in her mouth and then the said fat person had Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 158/315 raped her for about one hour. Sulekha Devi had then taken the prosecutrix to the 3rd floor, where Sulekha Devi was given Rs. 30,000/-, which the prosecutrix had seen and then on 07.2.2016, the prosecutrix was left at her house at Biharsharif at about 10 a.m. in the morning.
105. PW-3 has further stated that after the incident, she came to know about the person who had committed rape with the prosecutrix, who is MLA of Nawada, namely Rajballabh Prasad @ Rajballabh Yadav as also she came to know about the same from the newspaper and television. PW-3 had recognized Tusi Devi, Radha Devi, Sulekha Devi, Chhoti Devi, Pushpanjay and Rajballabh Prasad @ Rajballabh Yadav, who were standing in the dock. PW-3 has stated that the prosecutrix had filed a case with the police and her statement was also recorded by the police and the Court. PW-3 has recognized the statement made by her before the Court under Section 164 Cr.P.C, which has been marked as Exhibit-2/b and she has also recognized her signature made over the same, which has been marked as Exhibit 2/c. In paragraph no. 11 of her cross-examination, PW-3 has stated that at her house there are two mobile phones, one is with her father and the other one is with her elder sister, i.e. PW-1, however she does not remember sister's mobile number but her father's Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 159/315 mobile number is 9798206864. In paragraph no. 13 of her cross- examination, PW-3 has stated that on 06.02.2016, Sulekha and Chhoti had come together to her room and had stayed there for 5-6 minutes and had again come after 10 minutes, whereafter they had taken her sister i.e. the prosecutrix along with them. PW-3 has also stated in her cross examination that when the prosecutrix had not returned back to her house, her sister had gone to the house of Sulekha Devi for inquiry at around 8-9 P.M. in the night and after she returned, they had slept. On the next day morning, PW-3 had met other tenants but she did not talk with them regarding the prosecutrix either going or not returning back. When the prosecutrix had returned back nobody had come along with her, however she stood in the room and started crying, whereafter she had continued crying for half an hour, whereupon she went to the bathroom and came after one hour.
106. PW-3 has stated that she had seen blood stains on her clothes, however when she had asked the prosecutrix about the blood stains, she did not say anything. After coming out of the bathroom, the prosecutrix had spread the washed clothes on the roof. PW-3 has said that though she was apprehending that some wrong has been committed with the prosecutrix but she did not ring her father, however when her sister came back to the house, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 160/315 the prosecutrix disclosed everything about the incident, whereupon the sister became agitated but neither they went to the house of Sulekha Devi nor to the Bihar Police Station, though the same is at a distance of 200-300 yards as also they did not ring either their father or any other relation, immediately after hearing about the incident. On that day, after 3-4 hours of hearing about the said incident, telephone call was made to the father of the prosecutrix but he was not told about the incident and they had called him by saying that (PW-1) was ill. PW-3 has further stated that she along with her sister, father and the prosecutrix had gone to the Mahila Police Station for lodging the case and after 15.02.2016, two female constables used to guard their house. In para no.63 of her cross examination, PW-3 has stated that birthday of the daughter of Chhoti, namely Tuktuk was celebrated on 30.01.2016, wherein Sulekha Devi and Chhoti had called her, the prosecutrix and her sister but they had not gone to the said birthday party and in fact the prosecutrix had also not gone there.
107. PW-4 is the father of the prosecutrix, who has said in his examination-in-chief that the prosecutrix is his younger daughter and he has two other daughters namely, i.e. PW-1 and PW-3 as also he has got one son who all live in the house of Vishundeo Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 161/315 Prasad on rent at Udwantpuri, Professor Colony, Biharsharif. PW-4 has further stated that on 07.02.2016, PW-1 had rang him and called him, whereafter he had reached Biharsharif in the evening of 08.02.2016 and upon reaching there, PW-1 had narrated the incident, whereafter the prosecutrix had also narrated the incident while crying and she had told him that Sulekha Devi, who is the landlady of the house situated at the back had asked her to come to Bharaopar, Machhli Mandi on the pretext of going to a birthday party but instead of going to Machhli Mandi, the prosecutrix was taken to Ramchandarpur Bus stand, from where they had caught a bus and gone to Baktiyarpur, where they had gone to one house where a vehicle was called for and then the prosecutrix was made to sit in the said vehicle in which Sulekha Devi, Radha Devi along with one 8-10 years old girl had also sat, while three male persons were already sitting from before in the said vehicle. Chhoti had then told the prosecutrix that she should proceed ahead as she would come by another vehicle. The prosecutrix was taken towards Giriyak and they had then stopped at one Chimney bhatta, where Sulekha Devi had called someone on mobile and addressed him as Sir and had said that they are coming, whereafter they had proceeded further and after 10 minutes, they had reached one Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 162/315 white colored, four storied building, having a red colored gate.
108. PW-4 has further stated that thereafter, her daughter had asked them as to where they have come, whereupon Sulekha Devi told her that they are at Giriyak and then the gate was opened and the person who had opened the gate had wished Sulekha Devi, whereafter they had gone inside the house to the third floor, where a big hall was situated and there they had eaten chapati and vegetables. PW-4 has next stated that the prosecutrix was then told to sleep since Sir had not come there, whereupon the prosecutrix asked them as to whether this was the party, whereupon Sulekha Devi told her that they had not come to a party and instead they had come to meet Sir, who is a good person and she would ensure that the prosecutrix passes 10th with good marks. After one-hour Sulekha came there, when the time was more than 12:00 in the night and she went upstairs, whereafter she called the prosecutrix by telling her that Sir has come. Thereafter, the prosecutrix was taken to the 2nd floor, alongwith Radha Devi, but she stayed at the door outside the room. Sulekha Devi had then taken the prosecutrix to a room situated at 2nd floor where one fat and black colored person aged about 40-50 years was drinking liquor and he told them to sit and drink liquor, whereafter prosecutrix told him that she does not Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 163/315 drink liquor, however Sulekha Devi started drinking liquor. The said fat-black person then told the prosecutrix to go to the bed but the prosecutrix refused, whereafter Sulekha Devi made her sit on the bed and then the said 40-50 years old person had stuffed cigarette in her mouth and told her to smoke cigarette as also had held her tightly, whereupon Sulekha Devi had made the prosecutrix lie down on the bed as also had wrapped the mouth of the prosecutrix with the pallu of her saree and then the prosecutrix started crying and shouting but the said people did not stop there. Sulekha Devi and the said fat and black person told the prosecutrix that if she shouts then she would be handed over to the servants who will keep her for the entire night.
109. PW-4 has next stated that the said fat and black person had then raped her daughter for about one and half hours and then the prosecutrix was taken by Sulekha Devi to the 3rd floor of the house, where she was taken to the washroom and the blood was washed. In the morning, they took prosecutrix to Bakhtiyarpur by another car along with three persons and the said 8-10 years old girl. They had then stayed at the house at Bakhtiyarpur for about two hours, whereafter they had caught a bus to Biharsharif, where they reached at about 10 a.m. and dropped the prosecutrix at her house. During the aforesaid two Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 164/315 hours' time they were trying to please the prosecutrix by offering money and mobile phone but the prosecutrix had refused to accept anything, however they also told the prosecutrix not to disclose about the incident to anyone as also had asked the prosecutrix to bring her friends. The prosecutrix had disclosed that Sulekha Devi and Radha Devi had made a deal with the said middle aged person for a sum of Rs. 30,000/-. PW-4 has further stated that on 09.02.2016 he had gone along with PW-1 and the prosecutrix to the Mahila Police Station where a plain paper was given and as disclosed by the prosecutrix, PW-1 had written and given the same to the Police Station. PW-4 has stated that the said written report was written in his presence, whereafter the prosecutrix had read the same and made her signature and then he and PW-1 had also made their signature over the same. PW-4 has recognized his signature made over the said written report, which has already been exhibited in the past as Exhibit No. 1 and 1/c. PW- 4 has further stated that thereafter, the prosecutrix was taken by the police to the hospital for examination. On 09.02.2016 the police had recorded the statement of PW-4. On 15.02.2016 the statement of PW-4 was recorded in the Court under Section 164 Cr.P.C. and upon finding the same to be correct, he had put his signature over the same, which he has Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 165/315 recognized and the same has been marked as Exhibit-2/d.
110. PW-4 has also stated that Sulekha Devi, Radha Devi, Tusi Devi, Chhoti Devi, Pushpanjay and Rajballabh Prasad @ Rajballabh Yadav are having active role to play in the said incident. PW-4 has further stated that on 10.02.2016 during the course of investigation, the police had taken prosecutrix to Giriyak, however upon search the said four storied white house could not be found. Then on 11.02.2016 the prosecutrix was again taken by the police towards Giriyak and after moving ahead for some time she had remembered the Chimney Bhatta, whereafter they had moved ahead for some more time and then one white coloured four storied house was seen. After going near the said house, the rapist was found strolling outside the gate of the said house and was talking on a mobile phone and on seeing him the police had turned back. Thereafter, they moved ahead from there and then the police had asked the local people as to whom the said house belongs, then the people told that the said house belongs to Rajballabh Prasad @ Rajballabh Yadav who is M.L.A. of Nawada. The police had then gone towards Nawada along with the prosecutrix, where poster/banner were present, which the prosecutrix had seen and then she had recognized the rapist. After returning back from there, the prosecutrix was Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 166/315 called to the police station on 13.02.2016 and was shown some photographs, whereupon she recognized Rajballabh Prasad @ Rajballabh Yadav. PW-4 had also recognized all the accused persons standing in the dock, namely Sulekha Devi, Radha Devi, Chhoti Devi, Tusi Devi, Pushpanjay and Rajballabh Prasad @ Rajballabh Yadav. In paragraph no. 7 of his cross-examination, PW-4 has stated that he is inter-pass and his marriage was solemnized in the year 1990. He has also stated that at the beginning, he had got his elder daughter enrolled at Primary School, Sultanpur and she passed her matric in the year 2009 and graduated in the year 2016 from Nalanda College, Biharsharif. She used to go every day from her village to the college and during the course of giving examination also, she did not use to stay at Biharsharif as also had not taken any tuition or coaching at Biharsharif.
111. In paragraph no. 8 of his cross-examination, PW-4 has stated that he had also got his other daughter enrolled in the aforesaid school, however he does not remember as to in which year he had got her enrolled in the said school but she was enrolled in the said school after two years of enrolment of her elder sister and after completing her matriculation, he had got her enrolled with the Research Institute at Nalanda. After 2-3 Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 167/315 months of her enrolment, one room was taken on rent at Naisarai, Biharsharif, whereafter his other two daughters and his son started living in the said room. After his elder daughter had passed matric, his second daughter passed matric after one year and then he had got her enrolled at one polytechnic college at Delhi namely, Meerabai Institute of Technology, which was situated at Maharani Bagh, Delhi, where she had stayed for three years as also had completed her diploma course and after coming back, she had given intermediate exam privately. In paragraph no. 10 of his cross-examination, PW-4 has stated that when her elder daughter was staying at Delhi, he had got her other daughter enrolled at Biharsharif in the intermediate course, i.e after one year of her elder daughter having gone to Delhi, however she did not use to stay at Biharsharif and used to go to Biharsharif from her home and her college was situated at Sohsarai. PW-4 has further stated that his elder daughter had given intermediate exam from Biharsharif College and he had got his son enrolled at Biharsharif prior to his elder daughter having started staying at Biharsharif and he used to stay there in a hostel. After elder daughter of PW-4 had returned, she along with his other daughters and sons started staying at Naisarai together from the year 2015 onwards and at that time the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 168/315 prosecutrix had not gone there but she started staying at the room at Garhpar, Biharsharif, where he used to go 2-3 times in a week. In paragraph no. 13 of his cross-examination, PW-4 has stated that after four years of his marriage first daughter was born and after 15 months of the birth of his first daughter, second daughter was born and his second daughter was born after one and a half years of the birth of his first daughter. He has further stated that after the birth of his second daughter, the prosecutrix was born in the year 2000.
112. PW-4 has next stated that the prosecutrix was born after three years of the birth of her second daughter. He has also stated that after three years of the birth of the prosecutrix his son was born and after five years of the birth of his elder son, his younger son was born. PW-4 has further stated that he had not got the birth of the aforesaid children registered since they were born at home and he had also not given any documentary proof of their age at the time of enrolment of his daughters and at that time the enrolment of his daughters was done on the basis of their date of birth written in his diary. He has also stated that he had noted the date of birth of all his children in separate diaries. He has stated that 8-10 years back, ration card was made from the block wherein the names of all his children are present, however he Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 169/315 does not remember as to whether their age is written or not and he is also having A.P.L. card in which also list of his family members is mentioned, however, he does not remember as to whether the age of the members of his family is written there or not. In paragraph no. 25 of his cross-examination, PW-4 has stated that prior to the incident in question he had met his daughters on 04.02.2016 and in the evening of 07.02.2016 his daughter PW-1 had called him on mobile and told him that health is bad, hence he should come but he told her that he would not come on the same day, whereupon her daughter did not pressurize him to come on the same day. He has stated that he does not remember the mobile number of her daughter. PW-4 has further stated that her daughter had again called him in the morning of 08.02.2016, time whereof he does not remember, while he was in his shop and at that time his daughter had not shown any emergency as also she had not told him to bring her mother along with him. PW- 4 has next stated that in the evening after closing the shop he had gone to Biharsharif directly without going to his house and had stayed at Biharsharif in the night of 08.02.2016.
113. In paragraph no. 26 of his cross-examination, PW-4 has stated that after he gained knowledge about the occurrence, he Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 170/315 did not inform his family members, relatives or friends and he had become senseless in the night as also was not able to think as to what to do inasmuch as such a big incident had taken place. On the next day morning after they had woken up, they discussed amongst themselves and decided to give information to the police station about the occurrence. In paragraph no. 31 of his cross-examination, PW- 4 has stated that it is wrong to say that on 06.02.2016 the age of his daughter i.e. the prosecutrix was more than 18 years and that he has wrongly disclosed her age. In paragraph no. 32 of his cross-examination, PW-4 has stated that it is wrong to say that he had got the age of the prosecutrix recorded wrongly in the school records. In paragraph no. 44 of his cross-examination, PW-4 has stated that he always keeps mobile number 9798206864 with himself, which is with him since 2-4 years and by the said mobile number he used to call his three daughters almost every day, however he does not remember as to whether on 06.02.2016 he had called and talked with his daughters at Biharsharif. On 07.02.2016 and 08.02.2016 he had talked with his daughters and in fact his daughters had called him and talked to him. PW-4 has stated that though he does not remember the time when call was made to him on 07.02.2016 but the call had been made to him in the evening. On Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 171/315 08.02.2016 he had received call around 11:00-12:00 in the afternoon but he does not remember whether he was called once or on several occasions. On 09.02.2016 no talk took place in- between PW-4 and his daughters on the mobile phone because he was staying at Biharsharif at the house situated at Garhpar along with his daughters. On 10.02.2016 also PW-4 was at the house situated at Garhpar but he does not remember as to whether he had talked to his daughters on the mobile phone.
114. PW-4 has also stated that the second mobile number mentioned in the FIR belongs to PW-1 and the first number is his. He has denied the suggestion that on 07.02.2016 and 08.02.2016 he did not talk with his daughters by mobile phone. He has also denied that on 09.02.2016 he had talked with his daughter on the number mentioned in the FIR on four occasions as also in the morning at 06:52 minute, in the day time at 10:21 minute and in the evening at 07:19 minute, while he was at Rahui at that time. PW-4 has stated that it is wrong to say that on 10.02.2016 he had talked by his mobile phone with his daughters on several occasions. In paragraph no. 49 of his cross- examination, PW-4 has stated that after the treatment of prosecutrix was done at Indira Gandhi Ayurvigyan Sansthan, Patna, she was discharged on the same day. He has also stated Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 172/315 that the treatment of the prosecutrix was also done at Rahui Government Hospital, Biharsharif at Sadar Hospital and she is taking medicine till date. In paragraph no. 50 of his cross- examination, PW-4 has stated that on 09.02.2016, he along with the prosecutrix and PW-1 had gone on foot from the house situated at Biharsharif to Mahila Police Station for filing the case and on the way they had crossed Bihar Police Station but he had not gone to Bihar Police Station and had not met any police officer there. PW-4 has denied to have said anything with regard to the said incident to the S.P., Dy. S.P. etc. on the mobile.
115. PW-5 Rajeshwar Ram is Assistant Sub-Inspector of Police, who was posted at Mahila Police Station, Nalanda, Biharsharif on 12.02.2016 and on that day the Investigating Officer had recorded his statement in connection with Mahila P.S. Case No. 15 of 2016. PW-5 has stated in his examination-in- chief that he had gone to make the victim identify the place of occurrence. While moving ahead of Giriyak via Sabzi Mandi, they had reached Nawada. Then they reached towards the north near three corner roundabout and when they moved ahead, they had reached Chimney bhatta, which was recognized by the prosecutrix. The prosecutrix then disclosed that from the said Chimney bhatta, Sulekha Devi and her mother had talked with Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 173/315 some Sir and told him that they had reached. Then while going through Bhadoura village, they made enquiries from the villagers about the place of occurrence. From the road situated at a distance towards North-South of the place of occurrence, one four storied house was seen which was surrounded by wheat and mustard crop fields and the said house was situated in between the crop fields, which was recognized by the prosecutrix and she told that this is the house where the occurrence happened with her. Upon going near the house, the prosecutrix had identified one 40-50 years old person, who was black and fat and was strolling there and she told that this is the person who had forcibly raped her. PW-5 has further stated that they had then gone to Nawada Chowk and made enquiry about the said person, upon which they were told that he is Rajballabh Prasad @ Rajballabh Yadav and the house also belongs to him. Thereafter, they had come along with the prosecutrix to the police station. PW-5 had recognized Rajballabh Prasad @ Rajballabh Yadav, standing in the dock and had also recognized the other accused persons standing in the dock, i.e. Sandeep Suman @ Pushpanjay, Sulekha Devi, Radha Devi & Chhoti Devi, however, he said that he cannot remember the name of one more accused.
116. The learned Trial Court had put a question to PW-5 to the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 174/315 effect that when they had seen accused Rajballabh Prasad @ Rajballabh Yadav strolling at the place of occurrence, then why they had not asked his name, to which PW-5 had replied that since he is a powerful person (Bahubali), hence they had not asked his name.
117. In paragraph no. 4 of his cross-examination, PW-5 has stated that he had the occasion to go to the three-cornered roundabout, regarding which he has disclosed in his examination-in-chief. On 10.02.2016 he had gone to the three- cornered roundabout but not to Bhadoura village, where he had gone on 12.02.2016. On the way there are several Chimneys but they did not go to all the chimneys and straightaway went to the chimney about which prosecutrix has stated to have identified. PW-5 did not see any name written on the Chimney nor he saw any board on the Chimney and it was a general Chimney, where no persons were seen. PW-5 has further stated that even after the prosecutrix had recognized the Chimney, they had not gone inside the Chimney but were standing beside the Chimney for about half an hour, however nobody passed by during the said period but vehicles had passed by, whereafter they had returned back to the Mahila police station, where senior officers had come and made enquiries.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 175/315
118. PW-6, Manju Yadav, who was posted at the Mahila police station since 03.09.2014 as Assistant sub-Inspector of Police, has stated in her examination-in-chief that she knows about Mahila P.S. Case No. 15 of 2016 and has disclosed the name of the prosecutrix as also she has stated that she had gone along with the Investigating Officer in connection with the incident which had taken place with the prosecutrix. PW-6 has further stated that for finding the place of occurrence and for searching the persons who had committed the occurrence, they had moved towards Giriyak, as told by the prosecutrix, for finding the earthen road situated towards the southern side. After proceeding ahead for some time, as told by the prosecutrix, one board was seen by the prosecutrix and she said that she had gone ahead of the said place, whereafter PW-6 and others along with the prosecutrix had moved ahead towards the sabzi mandi at Nawada and after crossing the sabzi mandi and moving on the earthen road, they had reached three corner roundabout and while they had moved ahead on the southern road, they saw that all around mustard and wheat crops were growing and in between one four storied white house was situated, which the prosecutrix saw and then she told them that this is the house. After they had proceeded further, they saw one black and fat Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 176/315 person strolling there, who was wearing kurta-pyjama and was aged about 40-50 years, whom the prosecutrix had recognized and then she told that this is the person who had committed rape with her. PW-6 has further stated that in this context, the Investigating Officer had recorded her statement on 20.02.2016 at Mahila Police Station. In paragraph no. 5 of her cross- examination, PW-6 has stated that after they had reached the Mahila Police Station, since the father of the prosecutrix was present there, they had handed over the prosecutrix to her father and then her duty had ended, hence she went home. In paragraph no. 6 of her cross-examination, PW-6 has stated that when the prosecutrix became ill, then she had gone along with the prosecutrix to Indira Gandhi Ayurvigyan Sansthan, Patna for her treatment and at that time she got the opportunity to go to Sultanpur where other people including the doctors had also gone. She has also stated that they had taken the prosecutrix from her home and then they had dropped her back at her home.
119. PW-7, Gandhari Devi was posted as Sub-Inspector of police on 10.02.2016 at Mahila Police Station at Biharsharif, Nalanda and she has stated in her examination-in-chief that on the said day the Officer-in-Charge of Nalanda Mahila Police Station had directed her to take the prosecutrix in connection Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 177/315 with Mahila P.S. Case No. 15 of 2016 to Giriyak, towards the place of occurrence for identifying the accused persons. In light of the said order, after the prosecutrix had come to the police station, PW-7 along with the prosecutrix and police force had left the police station for the purposes of identifying the place of occurrence and the accused persons, whereafter they had proceeded towards Giriyak. As told by the prosecutrix, search was made regarding the place of occurrence and inquiry was made near Giriyak on both sides of the road but the place of occurrence could not be found. Then, as told by the prosecutrix that she had read the board of Giriyak and Nawada, they had proceeded towards Nawada and had gone upto Nawada-Hisua but nothing could be known. The prosecutrix was then taken to Biharsharif, where they had dropped the victim at her house at Garhpar. On the next day i.e. 11.02.2016, PW-7 along with the Officer-in-charge, prosecutrix and the police force had left the police station for identifying the place of occurrence and the accused persons and then they had reached Giriyak, where as told by the prosecutrix, lot of search was made with regard to the place of occurrence but nothing could be known at Giriyak. Then they had proceeded towards Nawada and had reached the vegetable market, from where they had proceeded on the earthen Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 178/315 road situated towards the southern side and after moving ahead for some time, they reached a three cornered roundabout, from where they proceeded towards the northern side and reached Meherganj village, where they found crusher machines and Chimney bhatta and on seeing the Chimney bhatta, the prosecutrix immediately said that at this Chimney bhatta, Sulekha Devi had talked with some Sir by her mobile phone, whereafter inquiry was made, but nothing could transpire. Thereafter, they had proceeded ahead of the Chimney bhatta and reached Bhadokhra village, where enquiry was made with regard to the place of occurrence, as told by the prosecutrix and there they came to know that ahead on the road situated south of the three cornered roundabout, one four storied white house is situated, whereafter they had proceeded ahead through the Bhadokhra village, crossed the three cornered round about and moved ahead on the southern road, where the prosecutrix told that the four storied house situated in between the wheat and mustard crops field is the house where the occurrence had taken place. In front of the said house one black and fat person aged about 40-50 years was strolling and upon seeing him, the prosecutrix immediately recognized him and said that he is the person who had forcibly raped her, whereafter the Officer-in- Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 179/315 charge moved towards Nawada Chowk for verification in her vehicle and made inquiry at Nawada Chowk, whereupon it transpired that the said four storied house which is located in between wheat and mustard crops field is situated at Pathra English village, which falls under the Nawada Mufassil Police Station and the said house belongs to M.L.A. of Nawada, namely Rajballabh Yadav as also the said black and fat person is M.L.A. of Nawada. Thereafter, the Officer-in-charge had talked with the senior officials on mobile and then they had left for Biharsharif and returned to Mahila Police Station at Biharsharif. PW-7 had recognized Rajballabh Yadav, standing in the dock.
120. In paragraph-10 of her cross-examination, PW-7 has stated that on 11.02.2016, they had left the Police Station at around 11-11:30 a.m. along with the prosecutrix, however the father of the prosecutrix had not gone with them. On 11.02.2016, the police personnel were the same as those who had gone on 10.02.2016, except S.I. Manju Yadav and Constable Seema Rani, who had been added apart from 3-4 male constable. On that day they had gone on a second (different) vehicle which had come from the police line, however PW-7 has stated that she cannot tell the name of the driver and the vehicle number. On 10.02.2016 also, the vehicle which was used by them had come Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 180/315 from the police line. On 11.02.2016, they had gone, via Bharaopar Chowk to Giriyak but they had not gone to Giriyak Police Station and on that day, they had not enquired about the four storied house. PW-7 has next stated that the by-lanes in which they had conducted enquiry on 10.02.2016 was again searched by them on 11.02.2016 and they had taken about 2½ hours at Giriyak. In paragraph-13 of her cross-examination, PW- 7 has stated that at the time when the prosecutrix had first seen the house where the occurrence had taken place, she had shouted with all enthusiasm. At that time, neither people nor vehicles were passing by. There were two big houses and one small pathar-chalan office at that place. The prosecutrix had shouted from the closed vehicle that this is the house. In paragraph-15 of her cross-examination, PW-7 has stated that after they had arrived at the Police Station along with the prosecutrix, the Deputy S.P., Sadar had arrived there and then the Deputy S.P., Officer In-charge and the prosecutrix had enclosed themselves in a room and after about half an hour, PW-7 had gone to her house, however she heard that photograph was shown to the prosecutrix in the room, about which madam had told her when she came out of the room.
121. PW-8 is Dr. Shailendra Kumar, who is stated to have been Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 181/315 posted at Sadar Hospital, Biharsharif on 17.02.2016 as Deputy Superintendent and on that day a Medical Board was constituted under the chairmanship of Civil Surgeon-cum-CMO, Nalanda, for medical examination of the prosecutrix vide letter no. 795 dt. 17.02.2016 comprising of the following members:-
(i) Dr. Shailendra Kumar, Deputy Superintendent (PW-8);
(ii) Dr. Ram Kumar Prasad (Pathologist), (PW-12);
(iii) Dr. Kumkum Kumari (Gynaecologist), (PW-11);
(iv) Dr. Kumari Preetee Ranjana (L.M.O.), (PW-13);
(v) Dr. Akhilesh Kumar (Dental Surgeon), (PW-10); and
(vi)Dr. Budh Prakash (Orthopaedic Surgeon), (PW-9).
122. PW-8 has stated that the mark of identification of the victim is a mole on the left cheek and a mole on the right dorsum of right hand. He has further stated that the physical examination of the prosecutrix was done by Lady Medical Officer as also by the Gynaecologist, namely Dr. Preetee Ranjana and Dr. Kumkum Kumari, respectively. PW-8 has also referred to the finding of the Medical Board in the following terms:-
"Conscious oriented average built, Secondary Sexual character well developed. No injury occur. No injury on the private part of the body."
123. PW-8 has also referred to the findings arrived at upon P.V. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 182/315 examination in the following terms:-
Vagina admitted two fingers easily. Hymen old ruptured. No injury inside the vagina. Vaginal Swab taken for microscopic examination.
Microscopic examination shows:-
(I) Spermatozoa not found. R.B.C. Nil. W.B.C. Nil.
Epithelial cell Present (1+).
(ii) Urine Pregnancy test-negative
124. As far as dental examination is concerned, 28 teeth were found to be present and the findings of the x-ray examination has been stated by PW-8 in the following terms:-
X-ray examination X-ray both wrist joint A.P. view:-
Epiphysis in the process of fusion.
Elbow joint- all epiphysis fused.
Knee joint- all epiphysis fused.
X-Ray Pelvis- Illiac crest appeared but not fused.
X-Ray done in I.G.E.M.S. Bihar Sharif dated 09.02.2016 vide Symbol B-I
125. PW-8 has finally opined that on the basis of above physical, dental, radiological and pathological examination, the Board is of the opinion that the age of the prosecutrix is in- between 16 to 17 years and rape could not be ruled out. PW-8 has also stated that all the members of the Medical Board, as Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 183/315 aforesaid had put their signature and affixed their seal on the said medical report. The Civil Surgeon - cum - C.M.O Nalanda had also put his signature and affixed his seal. PW-8 has identified all the signatures since all of them had signed in his presence. PW-8 has also stated that the prosecutrix had also put her signature over the medical report and had given her consent for examination. One Manju Yadav, Police A.S.I. had also put her signature on the report, which has also been identified by PW-8. PW-8 has stated that the medical report is in the pen and signature of Dr. Kumari Preeti Ranjana (LMO) and PW-8 has identified her writing as also the report, which was prepared in his presence. The entire medical report has been marked as Exhibit-4. PW-8 has also stated that as per instruction of the prosecution he has brought four x-ray reports, which have been kept on record. In paragraph No. 2 of his cross-examination, PW-8 has stated that there was no radiologist in the said medical Board. In paragraph-3 of his cross-examination, PW-8 has stated that on 17.02.2016, when the victim appeared before the Board, they did not suggest for her fresh x-ray and on 17.02.2016 the Board had knowledge that the victim was examined at Sadar Hospital by Dr. Krishna (LMO) on 09.02.2016. The Board had considered the said x-ray plates on 17.02.2016 and also referred Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 184/315 the same in their report. The Technicians did not submit any report with x-ray plate. PW-8 has next stated that no Radiologist is posted at Sadar Hospital, Biharsharif and time of starting and conclusion of the examination is not mentioned in the report.
126. The Court had put a question to PW-8 as to whether he had produced x-ray report or x-ray plates yesterday, to which PW-8 has stated that in the Court yesterday he had produced four x-ray plates and not the x-ray report. In paragraph-7 of his cross- examination, PW-8 has stated that the entire complaints and complications disclosed by the rape survivor is mentioned in the medical report and there was no evidence of recent sexual intercourse on the person of victim. In paragraph no. 8 of his cross examination, PW-8 has stated that in case of forceful sexual intercourse, there may be severe abdominal pain, burning micturition, burning sensation or mutilated genetalia. In such case, insertion of finger in vagina is very painful.
127. PW-9 Dr. Budha Prakash was posted at Sadar Hospital, Biharsharif where he was looking after orthopaedic cases as Orthopaedic Surgeon. PW-9 has stated that on 17.02.2016, he was posted at Sadar Hospital, Biharsharif on the same post and on that day, a Medical Board was constituted under the chairmanship of Civil Surgeon-cum-Chief Medical Officer, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 185/315 Nalanda for medical examination of the prosecutrix and he was also one of the member of the Board. PW-9 has identified his signature present on the medical report (Exhibit-4), which has been marked as Exhibit-4/A. PW-9 has stated that being an Orthopaedic Surgeon, he has given his opinion before the Board, after going through the X-ray plates of the prosecutrix which are four in number and were done at I.G.E.M.S., Sadar Hospital, Bihar Sharif vide Symbol No. (B-1) on 09.02.2016. These X-ray plates are of both wrist joint A.P. view, both elbow joint A.P. view, both knee joints A.P. view and pelvis A.P. view. PW-9 has stated that after going through the said X-ray plates, the age of the prosecutrix was determined in between 16-17 years. PW-9 in his cross examination has stated that all the members of the Medical Board had sat together on 17.02.2016 at about 08:30 P.M. and before that day, there was no meeting amongst the Members of the Board. PW-9 has further stated that when he had joined the Board meeting, the X-ray plates and pathological reports were already on table. He has also stated that he has not put his signature on the X-ray plates and he does not know as to from where the said X-ray plates were brought. PW-9 has also stated that he had given his opinion regarding age of the prosecutrix on the basis of the charts mentioned in the Forensic Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 186/315 Medicine Book and that he has no depth in radiology but had given opinion only because there was no qualified Radiologist in the said Medical Board. In paragraph no. 6 of his cross examination, PW-9 has stated that on 17.02.2016, he had consulted/taken help of Modi Medical Jurisprudence book for giving his opinion about age. PW-9 has also stated that there may be cases in which even after 18 years of age, the epiphysis of femur and proximal epiphysis of tibia and fibula may not be fused and the said position of the bone is known as knee joint. It is stated that the elbow joints of the victim might have been fused approximately one year prior to the report dated 17.02.2016 and the fusion of knee joints of the victim might have taken place within one year from the date of the report. As regards fusion of iliac crest, it is stated that its fusion takes place at the age of 19 years and on the basis of finding with regard to one bone, the age cannot be assessed. PW-9 has also stated that as per the opinion of "Lall and Townsend" fusion of wrist of a female takes place at the age of 18-19 years.
128. PW-10 i.e. Dr. Akhilesh Kumar was posted at Sadar Hospital Biharsharif on 17.02.2016 as Dentist and was part of the Medical Board which conducted the medical examination of the prosecutrix. PW-10 is stated to have examined the teeth of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 187/315 the prosecutrix and had found 28 teeth, 14 above and 14 down. PW-10 has stated that the 3rd molar of the prosecutrix had not come out, which categorically shows that her age was less than 17 years. He has stated that the report of the Medical Board was made in his presence and he had put his signature over the same, which he has identified and has been marked as Exhibit-4/6. In his cross examination, PW-10 has stated that on 17.02.2016 at about 6:00-6:30 in the evening, he was informed by Dr. Shailendra Kumar that he is also a Member of the Medical Board. hence he has to reach the office of the Civil Surgeon by 08:00 P.M. and when he reached there, except two members all had arrived and after he had come, Dr. Raj Kumar also arrived and the prosecutrix was present there from before, who had come there along with the police officer. PW-10 had conducted the dental checkup of the prosecutrix and counted the teeth. He has stated that 7/7 points denote molar teeth and the meaning of 7/7 is up to second molar. From Professor Modi Medical Jurisprudence, it would be proved that the age of the prosecutrix is below 17 years and the said opinion had been given by him after examining the teeth.
129. PW-10 has next stated that it is proved from Professor Modi's Medical Jurisprudence that he had not given opinion Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 188/315 regarding the prosecutrix being below the age of 17 years on the basis of teeth. In many people, 3rd molar never erupts (comes). PW-10 has further stated that at the time of examining the teeth of the prosecutrix, he had not written in his report that whether any space had been formed after 2nd molar for eruption (formation) of 3rd molar, although report should have been there with regard to the same.
130. PW-11, Dr. Kumkum Kumari is the Lady Medical Officer (LMO) who was posted at Biharsharif, Sadar Hospital on 17.02.2016. She has stated that on 17.02.2016, Civil Surgeon- cum-Chief Medical Officer had constituted a Medical Board under his chairmanship for examination of the prosecutrix vide Letter No. 795 dated 17.02.2016 and she was also a member in the said Board. PW-11 had examined the prosecutrix and she had examined her body also her private parts. Along with her, at that time, Dr. Kumari Priti Ranjana was also present and after examination it was decided that the age of the prosecutrix is in between 16-17 years, whereupon final medical report was prepared after investigation which is in the writing of Dr. Kumari Preeti Ranjana, which PW-11 has identified apart from identifying her signature and she has also stated that she had put her signature over the same which she has recognized as also she Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 189/315 has identified the signature of Dr. Kumari Preeti Ranjana, which have been marked as Exhibit-4/C and 4/D. PW-11 has also stated that on the said report, signatures of Dr. Shailendra Kumar and Civil Surgeon-cum-Chief Medical Officer (Chairman of the Board) is also present, which she has identified, since the same were made in her presence and the same have been marked as Exhibit-4/E and 4/F. PW-11 has stated that vaginal swab of the prosecutrix was taken for microscopic examination. In cross examination, PW-11 has said that Dr. Krishna (LMO) was posted at Sadar Hospital at Biharsharif and she is senior to her but she does not know as to whether examination of the prosecutrix was done by Dr. Krishna on 09.02.2016 and whether she has given her report. In paragraph No. 5 of her cross- examination, PW-11 has stated that in case some virgin and nubile girl is forcibly raped, injuries can be present in the outer and inner part of the private parts. Possibility is there of injuries being present on the buttock, on the thighs and the back. During the course of examination, no proof of sexual intercourse was found on the body of the prosecutrix. On 17.02.2016, X-Ray of the prosecutrix was done and upon constitution of the Board, everything is done afresh. The X-Ray of the knee joints, both wrist joints, elbow joints and pelvis of the prosecutrix was done Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 190/315 on 17.02.2016 and decision was taken after going through the X- Ray plates. In paragraph 8 of her cross examination, PW-11 has stated that ranging from 30 minutes to 17 days of the intercourse, alive or dead spermatozoa can be found.
131. PW-12 is Dr. Ram Kumar Prasad, who was posted as Pathologist at the Sadar Hospital, Bihar Sharif, on 17.2.2016, on which day a Medical Board was constituted under the chairmanship of Civil Surgeon-cum-CMO, Nalanda for medical examination of the prosecutrix and he is stated to be one of the members, as a Pathologist. PW-12 has stated that he had examined the vaginal swab smear of the prosecutrix and had not found spermatozoa as also R.B.C and W.B.C. were found to be nil, however epithelial cells were present. The urine pregnancy test was found to be negative. PW-12 has further stated that on the same day, the medical report was prepared and he had put his signature over the same, which he has identified and has been marked as Exhibit-4/g. In cross-examination, PW-12 has stated that he is aware that the prosecutrix had already been examined by Dr. Krishna on 9.2.2016. As per the desire of Civil Surgeon and Investigating Officer of this case, the Medical Board was constituted. PW-12 has identified the signature of Dr. Krishna present over the application addressed to Under Secretary, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 191/315 Health Department, Bihar, Patna, vide letter No. 428(G) dated 18.4.2016. The signature of Dr. Krishna was marked as Exhibit- X for identification. In paragraph no. 7 of his cross-examination, PW-12 has stated that in case of bleeding after forceful intercourse or sexual intercourse, there may be injuries in the genital trac like laceration, tear, abrasion. PW-12 has further stated that it is wrong to say that the prosecutrix did not turn up before the Board for reexamination on 17.2.2016 and that she was never examined by the Board on that day.
132. PW-13 is Dr. Kumari Preeti Ranjna, who was posted as Lady Medical Officer at the Sadar Hospital, Biharsharif, on 17.2.2016 and she was also a member of the Medical Board constituted by the C.M.O., Nalanda, under his chairmanship for medical examination of the prosecutrix. PW-13 has stated that along with her Senior LMO, namely Dr. Kumkum Kumari, who is a Gynaecologist, was also present. PW-13 had examined the victim and had arrived at the following findings:-
"(i) Conscious oriented Average built. Secondary sexual character well developed. No injury occurred. No injury on the private part of the body.
(ii) P/V examination- Vagina admitted two fingers easily.
Hymen old ruptured. No injury inside in vagina. Vaginal swab taken for microscopic exam.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 192/315
133. PW-13 has further stated that the urine Sample of the prosecutrix was sent for Pregnancy Test which was found to be negative. On the basis of their finding, they had assessed the age of the prosecutrix to be in between 16 to 17 years. The entire report was written by PW-13 and bears her signature, which has already been marked as Exhibit-4 and 4/d. PW-13 has stated in her cross-examination that she and Dr. Kumkum had conducted thorough examination and no evidence of sexual violence was found on the body of the prosecutrix. PW-13 has next stated that the final report was prepared on the basis of x-ray report, dental examination and report of the pathological test and she had also given her opinion, whereafter the report was prepared on the basis of the opinion given by the Doctors separately. PW-13 has further stated that X-ray is done at I.G.E.M.S, which is at a distance of five minutes from the chamber of the Civil Surgeon. PW-13 has denied the suggestion that the prosecutrix did not appear before the Medical Board on 17.2.2016.
134. PW-14, Alok Kumar was posted on 12.03.2016 in the District Information Unit, Nalanda which is situated at the residential office of the Superintendent of Police. PW-14 has stated that he was having complete control over functioning and operation of the computer i.e., of HP Company and all the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 193/315 information was being regularly compiled in its Hard Disk and the information received from the same computer with regard to the aforesaid case was extracted in Hard Copy and Soft Copy and same was made available to the Investigating Officer. PW- 14 has further stated in the paragraph no. 3 and 4 of his examination-in-chief that he had made available soft copy of CDR and CAF of 10 mobile numbers including his analysis report prepared by him of the same in a DVD of 4.7 GB. In paragraph no. 08, PW-14 has stated that he had received report from the investigating officer on 06.03.2016. It may be pointed out that in paragraph no. 11 of his cross-examination, PW-14 has stated that he had given an analysis report with regard to the mobile phone of Sulekha bearing no. 9162857459, from which it is apparent that on 06.02.2016 after 15:14:53 hours, the said mobile was found to be outside the tower location of Biharsharif. At 16:50:02 hours, the said mobile was found at Bakhtiyarpur. After 18:13:36 hours of 06.02.2016, no call has been made nor any call has been received over the said phone, hence CDR cannot specify the location of mobile no. 9162857459 belonging to Sulekha. In paragraph no. 13 of his cross-examination, PW-14 has stated that the mobile number of Tusi is 8651305263 and 8298800821, whose tower location on 06.02.2016 was not found Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 194/315 to be either within the district Nalanda or district Nawada. Similarly, on 06.02.2016, the tower location of Mobile no. 9162857459 belonging to Sulekha, after 15:14:53 hours, was not found within the tower location of District Nawada or District Nalanda.
135. In paragraph no. 14 of the cross-examination, PW-14 has stated that on 06.02.2016, no call was made in between mobile nos. 9162246321 and 9162857459. At this juncture, the learned Senior Counsel for the Appellant No. 1 has submitted that mobile no. 9162246321 belongs to the appellant of the first case. In paragraph no. 18 of his cross-examination, PW-14 stated that on 06.02.2016, a call lasting 26 seconds was made from mobile number 8651305263 to mobile number 9162246321, which he has mentioned at page No. 10 of his analysis report. He has further stated that from the same former mobile number, another call was made to the latter mobile number, which lasted approximately 21 seconds. In paragraph no. 22 of his cross- examination, PW-14 has stated that pursuant to the order of the Superintendent of Police, the CDR of each mobile number was obtained and this order was issued on the request made by the investigating officer to the Superintendent of Police. He has further stated that the CDRs of all the mobile numbers were Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 195/315 obtained for the period from 01st February to 10th or 11th March, 2016. In such cases where mobile numbers had been discontinued during this period, its CDR would only reflect data prior to 11.03.2016. In paragraph no. 23 of his cross- examination, PW-14 has stated that the location of mobile no. 8651305263 on 06.02.2016 and 07.02.2016, was found to be at Madhopur, Bakhtiyarpur, District-Patna. Similarly, location of mobile no. 8298800821 was also found at Bakhtiyarpur on 06.02.2016. In the CDR, location of both the mobile numbers is shown as Bakhtiyarpur and both the mobile numbers belong to Tusi Devi.
136. In paragraph no. 24 of his cross-examination, PW-14 has stated that mobile no. 9162857459, belonging to Sulekha Devi was showing its location on 06.02.2016, during all the calls made, either at Nalanda or Bakhtiyarpur, and that the last call from this mobile number was made at 18:13:36 hours. In paragraph no. 26 of his cross-examination, PW-14 has stated that as per his analysis report, mobile no. 9162246321 belonging to the Appellant of the first case was active, however the direction from Pathra English tower in which it was active was not mentioned in his analysis report. In paragraph no. 29 of his cross-examination, PW-14 has stated that between 01.02.2016 Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 196/315 and 06.02.2016, a total of 55 calls were made from mobile no. 9162857459, belonging to Sulekha Devi, to mobile no. 9801265522. Similarly, between 07.02.2016 and 09.02.2016, 9 calls were exchanged between the aforementioned mobile numbers. Furthermore, from Sulekha Devi's mobile number, a total of 13 calls were made between 01.02.2016 and 09.02.2016 to another mobile no. i.e., 9835274090. Additionally, 14 calls were recorded between 01.02.2016 and 09.02.2016 between Sulekha Devi's mobile no. and mobile no. 9835071905. It is pertinent to mention that the name, address, and Call Detail Records (CDRs) of the aforementioned three mobile numbers were neither obtained nor provided by him. In paragraph no. 30 of his cross-examination, PW-14 has stated that no requisition was made by the Investigating Officer for obtaining CDR of Mobile Nos. 7091225523 (airtel), 9430294787(BSNL), 8651343469 (Idea) and 7279050003 (AIRCEL) belonging to Sandeep Suman @ Pushpanjay.
137. PW-15, Mridula Kumari, is the Investigating Officer of this case and she has stated in her examination-in-chief that on 09.02.2016 she was posted at Mahila Police Station Nalanda, Biharsharif as Inspector of Police-cum-Officer-in-Charge, Mahila Police Station. On the said day, on the basis of the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 197/315 written report submitted by the prosecutrix, she had registered Mahila P.S. Case No. 15 of 2016 and assumed the investigation of the case as also had put the registration number on the written report of the prosecutrix, which she has recognized apart from having recognized her signature made over the same, which has been marked as Exhibit-1/d. On the basis of the written report of the prosecutrix, a formal FIR was lodged by Constable Asha Devi, whose writing PW-15 has recognized and she has also stated that her signature is present over the same, which she has also recognized and the same has been marked as Exhibit-8. PW- 15 has further stated that after taking charge of the investigation of the aforesaid case, she first of all mentioned the written report of the prosecutrix in the case diary, had recorded the restatement of the prosecutrix, had recorded the statement of the sister of the prosecutrix, i.e. PW-1 and the statement of the father of the prosecutrix, i.e. PW-4, whereafter she had sent the prosecutrix for medical examination as also for recording of her statement under Section 164 Cr.P.C. along with female constable No. 755, namely Sangeeta Kumari. PW-15 had then proceeded with the police force for investigation along with PW-1 and reached Garhpar, Professor Colony, Udantpuri Mohalla, where search was made for arresting the accused persons and during the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 198/315 course thereof, they had reached the house of Sulekha Devi but found the house to be locked and there they came to know that when they got clue of the prosecutrix going to the police station, they had fled away after putting lock on their house. PW-15 is stated to have inspected the house of the prosecutrix and its surroundings. On 10.02.2016, PW-15 had directed the Sub- Inspector of Police, Gandhari Devi (PW-7) to take the prosecutrix for the purposes of recognizing the place of occurrence, whereafter they had come back to the police station at 19:00 hours and the place of occurrence could not be recognized (identified) on the said day. On 11.02.2016, PW-15 along with the prosecutrix and police force had gone to Giriyak and after reaching Giriyak, as told by the prosecutrix, they went one by one on the right side towards the earthen road and search was made by them for wheat and mustard crop fields with regard to the white four-storied house but no such house, as described by the prosecutrix could be found at Giriyak. Thereafter, they had reached near Nawada Sabji Mandi and had gone ahead towards right on the earthen road and reached three cornered roundabout and after reaching there, they had proceeded towards north through Devki Bigha village and reached Chimney bhatta where they had also found a crusher, which is situated at Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 199/315 Meharganj. Thereafter, they had moved ahead of the Chimney bhatta and reached Bhadokhra village where they had enquired about the four storied house, as disclosed by the prosecutrix, whereupon they were told that if they moved on the earthen road, situated at south of the three-cornered roundabout, they would find such white house and wide road and the same is situated in the middle of the wheat and mustard crop fields.
138. Thereafter, PW-15 along with the prosecutrix and the police force had moved ahead on the earthen road and after 10 minutes, they found one or two new houses and a small room of stone Challan Office, whereafter they had reached Pathra English and then the prosecutrix had recognized a white house situated there and said that the occurrence had taken place at the said house, whereupon they had reached near the said house, where they found one fat and black colour middle aged person wearing kurta-pyjama strolling outside the gate while talking on a mobile phone and upon seeing him the prosecutrix had stated that this is the four storied house and the person who had given effect to the occurrence in question, is the said middle aged person. The prosecutrix had then identified the place of occurrence i.e. the house in question situated in the wheat and mustard crop fields and on the western side one wide road is Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 200/315 situated, apart from recognizing the said person who had committed rape with her. Thereafter, they had returned back and reached Nawada Chauk and enquired about the said white colour four storied house as also about the owner of the said house, whereupon it transpired that the same belongs to MLA, Rajballabh Prasad @ Rajballabh Yadav. The prosecutrix had recognized Rajballabh Prasad @ Rajballabh Yadav by seeing the poster of Vidhayakji displayed here and there. Thereafter, PW-15 along with her police force had returned back to the police station where Senior Police Officers had come and had made enquiry from the prosecutrix as also had shown the photo of Vidhayakji from the Internet, which she had recognized. On 12.02.2016, the medical report of the prosecutrix was received and her statement made under Section 164 Cr.P.C. was also received, which was mentioned by PW-15 in the case diary. PW- 15 has further stated that search was made for the accused Rajballabh Prasad @ Rajballabh Yadav but he was not traceable and the second floor of the said house, which is the main place of occurrence was found to be locked and the supporters of the accused, Rajballabh Prsad @ Rajballabh Yadav, had created obstruction. On 14.02.2016, PW-15 and other police officers along with the FSL team had reached the aforesaid place of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 201/315 occurrence for investigation but on account of obstruction by the supporters of Rajballabh Prasad @ Rajballabh Yadav, they had returned back to the police station. On 15.02.2016, requisition for search warrant and arrest warrant was made from the Court for conducting search of the place of occurrence and for arresting the accused persons. On 15.02.2016, PW-15 had also requested the Court to record the statement of PW-1, PW-3 and PW-4 under Section 164 Cr.P.C.
139. Thereafter, PW-15 had received the search warrant and arrest warrant as also the order for recording the statement of the aforesaid witnesses under Section 164 Cr.P.C.. On 16.02.2016, PW-15 along with the F.S.L team and the Police Officials had gone to the place of occurrence where the lock of the aforesaid room was opened by the Ex-Mukhiya, Ashok Kumar and then the FSL team had started investigation as also PW-15 had conducted inspection. PW-15 has narrated the description of the place of occurrence in detail in her deposition. PW-15 has further stated that on 16.02.2016, a chart of the items collected from the place of occurrence for examination was prepared by the F.S.L team in the prescribed form, which was prepared by one Trivedi Ji, who is a forensic expert, which had been identified by PW-15 and the same has been marked as Exhibit- Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 202/315
10. On 19.02.2016, PW-15 had received the medical report of the Medical Board, which had conducted the examination of the prosecutrix and the same was mentioned in the case diary. On 20.02.2016, the re-statement of the prosecutrix was recorded by PW-15 and then the statement of PW-3 was also recorded by her. In paragraph no. 24 of her examination-in-chief, PW-15 has stated that at the direction of the Inspector General of Police (Weaker Section), she had given an application before the Court for addition of Sections 366(A), 370, 370(A) and 120B of the IPC and Section 5 of the Immoral Traffic (Prevention) Act, 1956. In paragraph no. 25 of her examination-in-chief, PW-15 has stated that the FSL team came back to the Police Station after inspecting the place of occurrence and handed over the exhibits seized by them to her, whereafter she had presented before them the clothes worn by the prosecutrix on the day of incident which had been seized by her and the Constable, which were marked by them as also they had taken steps to send all the exhibits for examination. The seizure list was prepared by Gandhari Devi (PW-7) in her handwriting, which she has recognized and the same has been marked as Exhibit-11. PW-15 has also stated that she had obtained the mobile numbers of the accused and suspects and had handed over the same to the District Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 203/315 Information Unit (D.I.U.) for obtaining C.D.R., C.A.F. and analysis report of the same. In paragraph no. 30, PW-15 has stated that she had then made inspection of the house of Sulekha Devi, which is the third place of occurrence.
140. In paragraph no. 31, PW-15 has stated that on 12.03.2016 vide letter no. 163 dated 12.03.2016, she had received the certificate in Prapatra-4 from the District Information Unit along with the documents pertaining to Exhibit-107/16 which are related to the present case and she had mentioned about the same in the case diary. PW-15 has also stated that she had sent 10 mobile numbers for CDR, CAF and analysis report. PW-15 has stated that after receiving the CDR/CAF analysis report, she had mentioned the same in the case diary. PW-15 has next stated that upon going through the call detail records of the mobile of the accused Rajballabh Prasad bearing no. 9162246321, it was found that he was regularly in conversation with Vishnu Kumar, the holder of mobile no. 8084898313, who is his special driver and conversation had taken place in-between them 358 times in total and twice on the day of the occurrence too. PW-15 has also stated that from mobile no. 8651305263 belonging to Tusi Devi, 12 times calls were made in a year and conversation was held with the mobile number of Vidhyakji bearing mobile No. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 204/315 9162246321 and on the date of occurrence they had talked twice. As far as the other mobile number of Tusi Devi, i.e. 8298800821 is concerned, 2 times calls were made in a year to the mobile number of Rajballabh Yadav and the last call was made on 31.01.2016 on the mobile number of Rajballabh Yadav. As regards Sulekha Devi, she had made 10 calls in a year by her mobile no. 9162857459 to Rajballabh Yadav and the last call was made on 22.11.2015. During the course of analysis, it was also found that on the date of occurrence i.e., 06.02.2016, contact was made from the mobile number of Tusi Devi, i.e., 8651305263 with the mobile number of Rajballabh Prasad, i.e. 9162246321 twice, i.e. once at 14:33:47 hours and then at 17:44:02 hours and at that time the tower location of the mobile number of Tusi Devi was found to be at her house at Madhopur and the said fact was substantiated by the statements of Sulekha Devi, Radha Devi, Tusi Devi and Choti. PW-15 has also stated that it is apparent from the said contact made twice that first time information was given about the condition of the prosecutrix and on the second occasion, the car was asked to be sent since immediately two hours after the said conversation, the mobile tower location of the mobile of the driver Vishnu was found to be at Bakhtiyarpur (This has been recorded with objection of the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 205/315 defence). The mobile number of driver Vishnu is 8084898313.
141. In paragraph no. 35 of her examination-in-chief, PW- 15 has stated that it was found during investigation that the Driver Vishnu was in touch with Sulekha Devi, Tusi Devi and Radha Devi since past which is apparent from the analysis report and their statements. Driver Vishnu used to call Tusi Devi and Sulekha Devi from his mobile number 8084898313 and during the past one-year Tusi Devi had called him 55 times on his mobile number from her mobile no. 8651305263 and on the date of occurrence, i.e. on 06.02.2016, nine times call were made to him and further he had called on the mobile number of Sulekha Devi, i.e. 9162857459 on nine occasions, the last call having been made on 30.12.2015. The location of the aforesaid mobile of Vishnu Driver on the date of occurrence has been found to be at the tower situated at Pathra English in the morning at 08:50:59 hours up to 17:42.31 hours and prior to call being made from the mobile of Tusi Devi to the mobile of Rajballabh Prasad @ Rajballabh Yadav, conversation was held at about 14.29.21 hours, which was an incoming call. Thereafter, conversations were also held at 14:50:03 hours and 15:12:09 hours. Again, when Radha Devi and Sulekha Devi had brought the prosecutrix to Bakhtiyarpur, then conversations were held with Driver Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 206/315 Vishnu from 17:39:55 hours to 17:42:31 hours, 18:45:35 hours to 19:15:35 hours and from 19:37:08 hours to 19.47.22 hours. A report has been submitted by the D.I.U after making investigation of the tower of the place of occurrence, i.e., Pathra English, Garhpar, Biharsharif and Rani Sarai, in which reference has been made to towers of several companies and the accused Rajballabh Prasad as also driver Vishnu have used SIM of Airtel company, which confirms the place of occurrence. PW-15, after taking permission of the Ld. Court had taken the remand of Rajballabh Yadav for 48 hours to interrogate him and had recorded the statement of the appellant of the first case and mentioned it in the case diary, which was reduced in writing and PW-15 had also analysed the same. The statement of the bodyguard of the appellant of the first case was recorded under Section 164 Cr.P.C.. These statements have also been mentioned by PW-15 in her case diary. PW-15 had submitted chargesheet dated 20.04.2016.
142. In paragraph no. 40 of her examination-in-chief, PW-15 has stated that she had received the examination report of FSL which has been mentioned in paragraph no. 434 of the case diary. She has further stated that blood-like substance was found on the edge of the mattress cover. In paragraph no. 46 of her Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 207/315 cross-examination, PW-15 has stated that at the time the prosecutrix had come to the police station for lodging an FIR, she was not present in the police station, however she had reached there after about 10-15 minutes and after 5-7 minutes the prosecutrix had come to her at about 10:30 A.M. with her written report, whereafter at 10:40 A.M. she had sent PW-15 along with Constable Sunita Kumari for medical examination and after her medical examination she had directed for recording her statement under Section 164 Cr.P.C. In paragraph no. 50 of her cross-examination, PW-15 has stated that on 06.02.2016 the prosecutrix had gone along with Sulekha Devi and Chhoti Devi from their house, however she had not asked the prosecutrix as to through which way they had gone to Ramchandarpur bus stand and upon asking about the same from others, nobody had given any answer. PW-15 has also stated that no witness from the Mohalla of the prosecutrix had told her that on 06.02.2016 Sulekha Devi and Chhoti Devi had come to the house of the prosecutrix and had seen them going there as also none from the Mohalla of prosecutrix has given any statement to the effect that on 06.02.2016 they had seen prosecutrix going along with Sulekha Devi and Chhoti Devi from their house and moreover, no witness has said that they had seen them going ahead from Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 208/315 Ramchandarpur bus stand. In paragraph no. 51 of her cross- examination PW-15 has stated that nobody had seen the prosecutrix at Ramchandarpur bus stand or going ahead from there as also nobody had seen her and other women co-accused returning.
143. In paragraph no. 53 of her cross-examination, PW-15 has stated that Bharaopar Chauraha is a famous Chauraha of the town, which is situated at a distance of 1½ km from the house of the prosecutrix and Ramchandarpur bus stand is at a distance of 500 yards from Bharaopar Chauraha. She has also stated that in order to reach Ramchandarpur bus stand one has to cross Bharaopar Chauraha. In paragraph no. 57 of her cross- examination, PW-15 has stated that on 10.02.2016, in the night at about 10:30 p.m. she had constituted a team and along with the prosecutrix and her father, the said team was sent for investigation and arresting the accused and on that day she had not done any investigation as also she had not mentioned the members of the team in the case diary, much less about the vehicle which had taken the said team for investigation. She has next stated that she does not remember as to whether the said team had gone to Nawada-Hisua More on 10.02.2016 along with the prosecutrix, however she has stated that Gandhari Devi was a Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 209/315 member of the said team. In paragraph no. 60 of her cross- examination, PW-15 has stated that Chimney was situated at a distance of 40 yards from Devki Bigha-Maharani Ganj Road and upon the prosecutrix having told her that she had come there, PW-15 had stopped the vehicle, however the prosecutrix did not tell about any identification sign of the Chimney present there and PW-15 had also not written about any special sign of the said Chimney in her diary. PW-15 has also stated that neither she nor any other police personnel had alighted from the vehicle there and the vehicle had stopped there only for one-two minute, whereafter they had kept moving ahead and, on the way, they had enquired from the people coming and going through the said road about the house where the occurrence had taken place. PW- 15 has next stated that she had alighted from the vehicle after reaching Bhadokhara.
144. In paragraph no. 61 of her cross-examination, PW-15 has stated that they had gone to the door of 2-3 houses in Bhadokhara and the prosecutrix had also got down from the vehicle and upon enquiry made from the people present there, though they had not disclosed their names but they had indicated the direction of the house where the occurrence had taken place. She has next stated that they had seen the house where the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 210/315 occurrence had taken place from a distance of 40-50 yards away from the said house. She has also stated that after going ahead for five minutes from the three corner (tirmuhani) road, the place of occurrence disclosed by the prosecutrix was stated to have been identified. She has also stated that 100 yards prior to reaching challan office, the prosecutrix had said about recognizing the said house. PW-15 has next stated that after going ahead from challan office for about 20-25 yards, they had turned back the vehicle and gone to Nawada Chowk and near the house where the occurrence had taken place, she could not know as to whom the said house belonged to and they had also not asked at the challan office as to whose house it was. PW-15 has also stated that they had stayed at Nawada Chowk for 5-10 minutes and she had got down from the vehicle as also had stopped the passers-by and asked them about the owner of the house by telling them about the description of the house, whereupon they had told that the said house belongs to Rajballabh Yadav. PW-15 has next stated that for the first time the poster of Rajballabh Prasad @ Rajballabh Yadav was seen at Nawada Chowk and after inquiry when she was sitting in the car, the prosecutrix had indicated towards the photo/poster and said that he is the person, however neither the said poster was seized, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 211/315 nor photograph was taken. In paragraph no. 62 of her cross- examination, PW-15 has stated that while returning from Nawada Chowk she had not contacted the S.P., Nawada, Dy.S.P. or Mufassil Officer-in-Charge for the purposes of arresting the accused person. In paragraph no. 63 of her cross-examination, PW-15 has stated that while leaving the police station and returning back, entry is made in the station diary, however in the present case, there is no mention in the case diary about entry in the station diary. In paragraph no. 64 of her cross-examination, PW-15 has stated that she was present during the course of the search of the house concerning the place of occurrence on 11.02.2016 at about 04:00 p.m. in the evening and on that day at about 04:30 p.m. in the evening she had gone through the three- cornered round about to Devki Bigha and via Bhadokhra she had reached the house i.e. the place of occurrence.
145. In paragraph no. 66 of her cross-examination, PW-15 has stated that it could not become clear from the entire investigation as to by which number vehicle, the prosecutrix was taken from Bakhtiyarpur to Pathra English on 06.02.2016 and by which number vehicle she returned from there to Bakhtiyarpur on 07.02.2016 and it could only be ascertained that the prosecutrix had come and gone by white colored Bolero vehicle. In Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 212/315 paragraph no. 69 of her cross-examination, PW-15 has stated that she had received the mobile number of Rajballabh Prasad for the first time on 21.02.2016, which was ascertained from the second police report of the Superintendent of Police dated 20.02.2016. PW-15 has also stated that she has not mentioned in her case diary as to whether on 21.02.2016 she had received the C.D.R. of the mobiles in question or not but the Superintendent of Police had received the C.D.R of the mobiles in question, which can be ascertained from his second Police report. In paragraph no. 73 of her cross-examination, PW-15 has stated that on 12.02.2016 she had received the report of Dr. Krishna, issued in the date of 09.02.2016 and mentioned it in the case diary. In the said medical report it was written as follows:- "X- ray handed over to police". At this juncture PW- 15 has stated that she had not got any X-ray plate along with the medical report but she had not complained about the same to the lady doctor. PW-15 has further stated that she had perused the said medical report and in the said report there was no evidence of "forceful sexual intercourse" and the said doctor had found that the "victim is used to sex". In paragraph no. 75 of her cross- examination, PW-15 has stated that she had gone to the place of occurrence situated at Pathra English on 13.02.2016, where she Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 213/315 had found one locked room where the occurrence is stated to have taken place but she had not prepared any report with regard to the other parts of the said house because lot of commotion was taking place at that place and she had prepared only one paper regarding search-cum-seizure list. The seizure list mentions no items to have been seized and the same is in her writing which she has recognized, apart from recognizing her signature and the same has been marked as Exhibit-A (with objection).
146. In paragraph no. 76 of her cross-examination, PW-15 has stated that the F.S.L. team had given its report with regard to the articles seized on 16.02.2016. However, no evidence of rape was found, nor finger print/foot print was taken by the F.S.L. In paragraph no. 77 of her cross-examination, PW-15 has stated that on 17.02.2016 no work of investigation was done by her in the said case. On 19.02.2016 she has received the medical report of the Medical Board, which had been constituted on the orders of the seniors. In paragraph no. 78 of her cross-examination, PW-15 has stated that she has never gone with the prosecutrix to the place of occurrence situated inside the house located at Pathra English because the prosecutrix was ill. It has been stated that the D.I.G. in whose presence the statement of the victim was Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 214/315 recorded on 13.02.2016, and video recording was made, is Shalin Saheb. In paragraph no. 79 of her cross-examination, PW- 15 has stated that she had not taken out the C.D.R./ C.A.F. of the mobile numbers written in the F.I.R. In paragraph no. 82 of her cross-examination, PW-15 has stated that after the accused Rajballabh Yadav was taken on remand by the police, she had interrogated and a questionnaire was prepared, which was answered to by the accused wherein he has stated that in the night of 06.02.2016 at about 10:41 p.m. he had gone to the T.M.C. Guest House, where Manager of T.M.C. Guest House Umed Singh Yadav, his brother-in-law, Vinay Ranjan and one I.A.S. Officer of Jharkhand, namely Manoj Kumar were present. It was also stated by Rajballabh Yadav that the meeting was called to resolve the land dispute pertaining to the brother-in-law of Manoj Kumar, namely Narendra Ji and they had remained there at the TMC Guest House for two hours and then at about 02:45 in the night, they had left for Nawada and via Prajatantra Chowk they had reached Barahgania Pyne where they had stayed for half an hour for the purposes of supervising the cleaning of the said Pyne and then via the old jail, they had reached near the old guest house, where also they had stayed for half an hour where he had met Surendra Pandit and in the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 215/315 morning at 05:00, he had returned back to his residence at Pathra English. In paragraph no. 86 of her cross-examination, PW-15 has stated that she had not recorded any statement of Mukhiya of Bhadokhra, who had opened the lock of the house situated at the place of occurrence and she had also not recorded the statement of the witnesses of the seizure list dated 13.02.2016, namely Pravin Kumar and Upendra Kumar. She has also stated that during the entire investigation, the medical test of accused Rajballabh Yadav was not conducted.
147. In paragraph No. 96 of her cross-examination, PW-15 has stated that in the Mahila Police Station, one driver namely Sanjay was posted on the date of the aforesaid occurrence and thereafter as well but she does not remember the mobile number of the said driver to be 8409734500 and 9431402285. As per CDR, on 08.02.2016 at 15:26:22 hours, call was made from mobile number 9431402285 to mobile no. 9162857459 (Sulekha Devi) and on the same day at about 15:28:57 hours talks were held in between mobile number 9409734500 and 9162857459. PW-15 has also stated that she does not know as to whether the driver Sanjay had talked with Sulekha on her mobile phone. In paragraph-97 of her cross-examination, PW-15 has stated that out of the two mobile numbers mentioned in the FIR one mobile Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 216/315 number is 7856940431, from which talks were held on several occasion on 09.02.2016 at 13:27:56 hours as also on 12.02.2016 which is apparent from the CDR sent by the Reliance Company to the Court. Thus, calls were made from mobile number 9431402285 to the mobile number mentioned in the FIR on 09.02.2016 and 12.02.2016, which is also apparent from the CDR. In paragraph No. 98 of her cross-examination, PW-15 has stated that the second mobile number mentioned in the FIR is 9798207864 and the CDR of this mobile number has also been sent by Reliance Company from which it transpires that in between the mobile numbers mentioned in the FIR, no conversation was held on 07.02.2016 and 08.02.2016 and conversation was held only on 09.02.2016, which is apparent from the CDR. In paragraph No.100 of her cross-examination, PW-15 has stated that the mobile from which photographs of Rajballabh Yadav was taken out through the net on 11.02.2016 and 13.02.2016 and was shown to the prosecutrix belongs to some other police officer, however she does not remember as to whom the same belongs to and she has not mentioned in her diary about the name of the owner of the said mobile and the mobile number. PW-15 has further stated that there were 2-3 types of photographs on the net but the photographs taken out Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 217/315 from the net on the aforesaid two dates are more or less similar and she had not taken any steps for conducting T.I. Parade. She has also stated that the photographs of the accused, which was shown to the prosecutrix on 11.02.2016 and 13.02.2016 is not present in the case diary and on 13.02.2016, she had not recorded any statement of the prosecutrix in the case diary and only video recording was done in which the voice of senior police officers can also be heard.
148. In paragraph No. 106 of her cross-examination, PW-15 has stated that first re-statement of the prosecutrix was recorded by her on 09.02.2016 and her second statement was recorded by her in the case diary on 20.02.2016. She has also stated that in the re-statement made by the prosecutrix on 09.02.2016, the name of Pushpanjay has not transpired as an accused. In paragraph No. 119 of her cross-examination, PW-15 has stated that at the time of occurrence, except Sanjay no other driver was present in the Mahila Police Station and on 09/10.02.2016, Sanjay driver had not gone with her for investigation. PW-15 has further stated that if they go from the police station for investigation by another car then the said vehicle is mentioned in the station diary, however in the entire case diary, neither the name of any police officer nor vehicle number has been Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 218/315 mentioned. In paragraph no. 122 of her cross examination, PW- 15 has stated that she has not mentioned the name of the concerned Deputy Superintendent of Police in the case diary, who had taken out photograph from the net on 11.02.2016 for the purposes of identification by the prosecutrix as also she had not recorded his statement. The name of the said officer has also been not been mentioned as a witness in the charge-sheet. PW- 15 has stated that neither the statement of the concerned police officer, before whom PW-15 had shown the photograph from the mobile phone on 13.02.2016 to the prosecutrix, in connection with identification of the accused has been recorded nor she had prepared any identification memo in presence of the Deputy Superintendent of Police on 11.02.2016 or 13.02.2016. PW-15 has next stated that she had also not prepared any identification memo on 11.02.2016 with regard to the prosecutrix having identified the accused by seeing the poster at Nawada Chowk. PW-15 has stated that she had also not prepared any identification memo on 11.02.2016 with regard to the concerned chimney much less with regard to the house, which is the place of occurrence. PW-15 has also stated that she had not recorded in the case diary that Chimney was identified by the prosecutrix in presence of independent witness.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 219/315
149. In paragraph no. 127 of her cross-examination, PW-15 has stated that she had gone to the house of Sulekha Devi many times, however she had found the house to be locked and she had also deputed spy there. She has also stated that she had also enquired about the mother of Sulekha Devi, who used to stay at Shivpuri Mohalla along with her husband Arun Kumar. She had also come to know about one sister of Sulekha Devi, namely Tusi Devi. PW-15 has also stated that she had not carried out any photography either of the house of Sulekha Devi situated at Garhpar or the house of Radha Devi situated at Bakhtiyarpur and the prosecutrix was also not taken there since she was ill. In paragraph no. 144 of her cross examination, PW-15 has stated that the name of Pushpanjay does not find place either in the FIR or in the statement made by the witnesses on 09.02.2016 or the statement made by the witnesses under Section 164 Cr.P.C.. In paragraph no. 145 of her cross examination, PW-15 has stated that it has been mentioned in paragraph no. 102 of the case diary that search of accused Sandeep Suman @ Pushpanjay was made as per law and he was kept in safe custody. She has also stated that he was caught and brought by other police officers from Patna. She has also stated that search was not made in presence of any independent witnesses. In paragraph no. 148 of her cross Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 220/315 examination, PW-15 has stated that on 06.02.2016, accused Sandeep Suman @ Pushpanjay was present at Rani Sarai, Bakhtiyarpur, which was told by the prosecutrix. In paragraph no. 149 of her cross examination, PW-15 has stated that on 19.02.2016 at about 19:15 hours, Sandeep Suman @ Pushpanjay was arrested and produced before her. In paragraph no. 151 of her cross examination, PW-15 has stated that she had not given any application to the DIU for taking out the CDR/CAF of the mobile of Pushpanjay, hence nothing has come to light to show that any talks had taken place from his mobile in connection with the present case.
150. PW-16, Vipin Kumar Chaudhary is stated to be posted as In-charge Director, State Photo Bureau, Crime Investigation Department, Bihar, Patna and on that day, he had received a requisition from the Investigating Officer of Mahila PS Case No. 15/16 dated 09.02.2016, namely Mridula Kumari asking him to depute a photographer. He has also stated that videography was also done by the police team and he has referred to the memory cards, which has been exhibited in the present case. Thus, we find that PW-16 is a formal witness, who has only identified the memory cards and compact disks, used for video recording.
151. PW-17, Raj Kumar Bharti was posted in the office of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 221/315 State Photo Bureau, Crime Investigation Department, Bihar, Patna and he has stated about videography having been done in the said case and has also identified the memory cards and CD's, which have been marked as exhibits.
152. PW-18 is Reshma Verma, who was posted as Additional Chief Judicial Magistrate-VII, Civil Court, Biharsharif. PW-18 had recorded the statement of the prosecutrix, PW-1 and PW-3 under Section 164 Cr.P.C., which have also been exhibited in the present case.
153. PW-19, Swarn Prabhat was posted as Judicial Magistrate- 1st Class, Civil Court, Biharsharif on 15.02.2016 and he had recorded the statement of PW-4 under Section 164 Cr.P.C., in connection with Mahila P.S. Case No. 15 of 2016, which has also been marked as exhibit.
154. PW-20, Devanand Kumar had been posted at the Vodafone Company since June, 2014 and had produced and identified the certificate issued under Section 65(B) of the Indian Evidence Act, which has also been exhibited in the present case.
155. PW-21 is Vimal Kumar Srivastava, who was posted as Nodal Officer in the Idea mobile company and he had produced the CDR/CAF of the mobile numbers in question, before the investigating team and he had also produced the certificate under Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 222/315 Section 65(B) of the Indian Evidence Act, all of which have been marked as exhibits in the present case.
156. PW- 22, Javed Akhtar is an employee/Nodal officer of the Airtel mobile company, who had produced CDR/CAF of various mobile numbers before the investigating team and he had also produced certificate under Section 65(B) of the Indian Evidence Act, all of which have been marked exhibits in the present case.
157. After closing the prosecution evidence, the learned Trial Court recorded the statement of the appellants on 17.03.2017/ 12.04.2018 under Section 313 of the Cr.P.C. for enabling them to personally explain the circumstances appearing in the evidence against them, however in their respective statements, they claimed themselves to be innocent and have stated that they have been falsely implicated in the present case.
158. Now coming to the evidence of the defence witnesses, DW-1 Umed Singh Yadav has stated in his deposition that he was posted as Manager, TMC, Oraina on 06.02.2016. In the premises of TMC, there is one guest house as also one canteen and he knows the accused of the present case Rajballabh Prasad Yadav. DW-1 has also stated that on 06.02.2016 at about 08:30 p.m. in the night, Rajballabh Prasad Yadav (MLA) had rang him and asked him to make preparation and receive the officer, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 223/315 whereafter Vinay Ji reached TMC at 08:45 P.M. and then at 9:00/9:15 p.m. Manoj Kumar had come there in a Scorpio vehicle and ultimately at 09:30 p.m. he had talked to the M.L.A., however the call was received by his Assistant, whereupon he had informed him about the guests having arrived there. DW-1 has further stated that at 10:45-11:00 p.m. in the night Vidhayakji had come to the premises of TMC along with other people including his driver Dilip and his Assistant Pandit Ji. One Bhante Ji had come there by the car of Chairman of Child Labour Commission and the government bodyguard of Vidhayakji, who was in dress. After having dinner, Vidhayakji and the Administrative Officer had come out of the room at about 01:00 a.m., whereafter the vehicle of the Administrative Officer had left from there and after 2-4 minutes, Vidhayakji had left the premises of TMC by his vehicle and along with his associates.
159. DW-2 Vinay Kumar Ranjan is the brother-in-law of Rajballabh Prasad Yadav, who had arranged the meeting of Rajballabh Prasad Yadav with Manoj Kumar and others at TMC Guest House. He has stated that he had reached TMC Guest House at about 9:00 p.m. in the night of 06.02.2016 where Rajballabh Prasad Yadav (MLA) had arrived at 11:00 p.m. in the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 224/315 night and the meeting had continued up to 12:45, whereafter at about 01:00 a.m. Rajballabh Prasad Yadav and others had left the premises of TMC.
160. DW-3 Hari Shankar Singh was the Secretary of the village Saraswati Puja Committee in the year 2016 and had organized Programme at Middle School, Bhadokhra. He has stated that on 11.02.2016, no police party had come for inspection at the village.
161. DW-4 Kailash Prasad Yadav is the Ward Councillor and he has stated that Rajballabh Prasad Yadav (MLA) had arrived at Prajatantra Chowk at about 01:30 a.m. in the morning of 07.02.2016 and was supervising cleaning of drain, whereafter he had left after 1-1/2 hours.
162. DW-5 Ram Ratan Singh has stated in his deposition that his wife Urmila Devi is the Councilor of Ward No. 13 (Nawada) and in the night of 06.02.2016 and in the morning of 07.02.2016 at about 3:00 a.m. in the morning, Rajballabh Prasad Yadav had reached at Gola Road, Barahgania Pyne, Nawada for supervising the cleaning work of the drain in question.
163. DW-6 Prashant Rai is also a Ward Councilor, who has stated in his deposition that on 07.02.2016 in the morning at about 3:00, he was at Harishchandra Stadium where Rajballabh Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 225/315 Prasad Yadav had reached at about 3:30 - 4:00 a.m.
164. DW-7 Upendra Kumar has stated that he is a Contractor supplying labour and on 13.02.2016, he was present at the challan house where the police party had come. PW-7 has also stated that the police had searched the house of the appellant no. 1 of first case at Pathra English on 13.02.2016 in his presence as also in the presence of one Praveen, whereafter he and Praveen had put their respective signatures on the seizure list, which has been marked as Exhibit-A/1 and A/2.
165. DW-8 Ashok Kumar has stated in his deposition that the place from where the prosecutrix has stated to have seen the appellant of the first case strolling outside his house is such a place from where the gate of the house in question is not visible and from the house in question no Chimney is visible.
166. DW-9, Prakash Veer, who is MLA of Rajauli has stated that on 30.12.2015 he had also gone along with Rajballabh Prasad Yadav to Rajgir where the Chief Minister had come and they had met him in evening at 7:25 p.m. and there one Electricity Contractor had made complaint regarding corruption whereupon the Chief Minister had reprimanded Rajballabh Prasad Yadav.
167. DW-10, Anil Mehta, who is a Social Worker has said that Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 226/315 there was sore relationship in between the Chief Minister and Rajballabh Prasad Yadav i.e. the appellant of the first case on account of political reasons.
168. DW-11, Bhante Jambudeep @ Lalan Manjhi has stated that in the night of 06.02.2016, he was with Rajballabh Prasad Yadav from 08:30 p.m. to 01:30 and they had been together at the Guest House situated at TMC premises, whereafter they had gone together to Prajatantra Chowk.
169. DW-12 Dinesh Kumar Akela has stated in his deposition that he had met Rajballabh Prasad Yadav in the intervening night of 06/07.02.2016 at around 01:30 a.m. at Prajatantra Chowk, whereafter he had accompanied Rajballabh Prasad Yadav to Harishchandra Stadium where they had stayed together for 45 minutes and then they had left.
170. DW-13, Rajesh Kumar is a Photographer and he has certified the certificate prepared by him under Section 65(B) of the Indian Evidence Act. He has also proved the Scan Disk etc., which have been marked as Exhibits No.- F to F/7.
171. DW-14, Prakash Kumar Singh is the Nodal Officer of the Reliance Mobile Company and he has produced the CAF and CDR of the two mobile numbers mentioned in the written report/FIR, alongwith certificate under Section 65(B) of the Act, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 227/315 1872, which have been marked as Exhibits No.-I, J to J/5, K to K/3, L to L/1 and M and N.
172. DW-15, Rajiv Ranjan Kumar is an Advocate Clerk who has identified the signature of Dr. Krishna, which has been marked as Exhibits-P and P/1.
173. The learned Trial Court upon appreciation, analysis and scrutiny of the evidence adduced at the trial has found the aforesaid appellants guilty of the offence and has sentenced them to imprisonment and fine as stated above, by its judgment and order.
174. We have perused the impugned judgment of the learned Trial Court, the entire materials on record as also the evidence adduced in the present case and have given a thoughtful consideration to the rival submissions made by the learned senior counsels/counsels for the appellants, the learned A.P.P. for the State and Ms. Anukriti Jaipuriyar, Amicus Curiae appearing for the prosecutrix. The first and foremost aspect which is required to be adjudged is as to whether the prosecutrix is a minor or not. In this regard we would first of all refer to the methodology specified under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rules, 2007'), which prescribes the procedure Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 228/315 to be followed in determination of age of a juvenile or a child or a juvenile in conflict with law. In the case of Jarnail Singh (supra), the Hon'ble Apex Court has held that even though Rule 12 of the Rules, 2007 is strictly applicable only to determine the age of a child in conflict with law, the said statutory provision should also be the basis for determining age even of a child who is a victim of crime.
175. Rule 12 of the Rules, 2007 provides determination of age by seeking evidence by obtaining the matriculation or equivalent certificates, if available and in absence thereof, the date of birth certificate from the school (other than a play school) first attended and in absence of the same, the birth certificate given by a Corporation or a Municipal Authority or a Panchayat and only in absence of either of the aforesaid documents, medical opinion is required to be sought from a duly constituted Medical Board, which shall declare the age of the juvenile or child. In the present case the prosecutrix has produced provisional matriculation certificate dated 29.05.2016 issued by the Bihar School Examination Board, Patna regarding the Secondary School Examination, 2016 wherein the date of birth of the prosecutrix has been mentioned as 04.01.2000 and the same has been marked as Exhibit-3, however with objection. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 229/315 On the issue as to whether the mode and manner of proving Exhibit-3 i.e. the provisional matriculation certificate of the prosecutrix is defective or not and whether the same has been proved in the manner as postulated under the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act, 1872'), much arguments have been made by both the sides and while the Amicus Curiae has stated that since Exhibit-3 is a public document, therefore it is not required to be proved like any other document, although the same has been marked as an exhibit with objection, the learned senior counsel Sri Surendra Singh, appearing for the appellant of the first case has submitted that even if Exhibit-3 i.e. the provisional matriculation certificate of the prosecutrix is considered to be a public document, it is required to be proved in the manner laid down under Sections 67 to 73 of the Act, 1872.
176. As regards the aforesaid issue, we have gone through the definition of "Document" as mentioned in Section 3 of the Act, 1872 and have also perused Sections 61, 62, 64, 67, 74, 76 and Section 77 of the Act, 1872. We find that any "document" includes both public and private document. Section 61 of the Act, 1872 provides that the documents may be proved either by primary or by secondary evidence and the same includes both Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 230/315 private and public documents. Similarly, Section 62 which deals with primary evidence also includes both private and public document and Section 64 which deals with proof of documents by primary evidence also includes both public and private documents. As far as Section 67 of the Act, 1872 is concerned, the same provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Therefore, we find that unless and until the signature is proved, a document cannot be deemed to have been proved. Now coming to section 74 of the Act, 1872, we find that sub-clause(2), thereof deals with "public records kept [in any state] of private documents", thus Exhibit-3 would fall under the said clause inasmuch as a bare perusal of section 74 (1)(i) to (iii) would show that Exhibit-3 does not fall within the ambit of the same. Hence, we find that even if Exhibit-3 is regarded to be an original copy, then also the signature appended over the same is required to be proved, as per the provisions referred to hereinabove, otherwise the document in question shall not stand proved. In this connection reference be had to a judgment rendered by the Hon'ble Apex Court in the case of Neeraj Dutta Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 231/315 (supra), wherein it has been held that when a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act and mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents as also its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, the contents of the document must be proved either by the production of the original document i.e. primary evidence or by copies of the same as per Section 65 as secondary evidence. So long as an original document is in existence and is available, its contents must be proved by primary evidence. Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence. We would also gainfully refer to a judgment rendered by the Hon'ble Apex Court in the case of R.V.E. Venkatachala Gounder (supra).
177. Now coming back to the present case, we find that it is evident from the records that at the very inception, when the provisional matriculation certificate was sought to be exhibited as Exhibit-3, the defence had raised an objection, consequently the provisional matriculation certificate was marked as Exhibit- Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 232/315 3 with objection, hence considering the law laid down by the Hon'ble Apex Court in the aforesaid case of R.V.E. Venkatachala Gounder (supra), it is manifest that an objection with regard to any document being exhibited by the prosecution is directed towards the irregularity and insufficiency of the mode and manner of proving the said document, thus the prosecution was required to cure its defect and should have proved the said Exhibit-3 in the manner as postulated under the Act, 1872. In fact in a judgment rendered by the Hon'ble Apex Court in the case of Narbada Devi Gupta (supra), the Hon'ble Apex Court has held in paragraph no. 16 thereof that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents and its execution has to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the fact in issue. Thus, we find that Exhibit-3 i.e. the provisional matriculation certificate of the prosecutrix has not stood proved in the manner laid down under Sections 61 to 73 of the Act, 1872, hence the same cannot be considered by us as a proof of age of the prosecutrix.
178. The next issue which would now arise is that in absence of matriculation certificate, how the age of the prosecutrix is to Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 233/315 be determined. In this regard the law is well settled inasmuch as the Hon'ble Apex Court has held in a judgment rendered in the case of Jarnail Singh (supra) that in case neither the matriculation/equivalent certificates are available nor the date of birth certificate from the school first attended is available nor the birth certificate given by a Corporation or a Municipal Authority or a Panchayat is present, medical opinion is required to be sought for from a duly constituted Medical Board which is required to declare the age of the juvenile or a child. In the present case we find that a Medical Board was constituted, as aforesaid, which had examined the prosecutrix on 17.02.2016 and furnished a medical report, opining therein that on the basis of physical, dental, radiological and pathological examination, the age of the prosecutrix is in between 16 to 17 years. As far as the medical report dated 17.02.2016 is concerned, we find that no Radiologist was a part of the Medical Board, hence neither radiological test was conducted nor expert opinion of the Radiologist was sought for, which is not only important but also conclusive in determining the age of the prosecutrix on the basis of ossification test and reliance was placed merely on a set of x- ray plates pertaining to some purported x-ray of the prosecutrix got done at some other hospital, however there is no proof on Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 234/315 record to show that the same pertains to the prosecutrix, hence a doubt is created regarding the entire process of age determination of the prosecutrix. We also find that though PW- 10 (Dental Surgeon & Member of the Medical Board), in his evidence, has stated that since the third molar of the prosecutrix had not come out, her age is less than 17 years, however page no. 280 of the Modi's Medical Jurisprudence and Toxicology, 23rd Addition, relied upon by the appellants shows that third molar or wisdom teeth can erupt any time in between 17th to 25th years of age thus the said opinion of PW-10 cannot be relied upon. We also find that the Hon'ble Apex Court in the case of Vinod Katara (supra) has held in paragraph no. 58 thereof that bone ossification test is not an exact science which can provide us with the exact age of the person and the individual characteristic such as the growth rate of bones and skeletal structure can affect the accuracy of this method, hence the ossification test is not conclusive for age determination because it does not reveal the exact age of the person but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. Thus it is not in doubt that radiological examination leaves a margin of two Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 235/315 years on either side of the age range. Hence, applying the said principle to the present case, if two years are added to either 16 or 17, the prosecutrix would definitely be a major.
179. We shall now advert to the deposition of the members of Medical Board with respect to the "x-ray - Plates" of the prosecutrix, about which reference has been made in the medical report dated 17.02.2016 (Exhibit-4) and it has been specifically stated therein that "x-ray done in I.G.E.M.S Biharsharif dated 09.02.2016 vide Symbol B-I". As far as the evidence of PW-8, Dr. Shailendra Kumar is concerned, he has stated in paragraph No. 3 of his cross-examination that on 17.02.2016, when the victim had appeared before the Board, they did not suggest for her fresh x-ray, however on 17.02.2016 the Board had knowledge that the victim was examined at Sadar Hospital by Dr. Krishna (LMO) on 09.02.2016 and in fact the Board had considered the said X-ray plates on 17.02.2016, which was also referred to in the said report. PW-9, Dr. Budha Prakash has stated in paragraph No. 2 of his examination-in- chief that he being an Orthopaedic Surgeon had given his opinion before the Board after going through the X-ray plates of the prosecutrix which are four in number and the X-ray was done at I.G.E.M.S., Sadar Hospital, Bihar Sharif vide Symbol Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 236/315 No. (B-I) on 09.02.2016. These x-ray plates are of both wrist joint A.P. view, both elbow joint A.P. view, both knee joints A.P. view and pelvis A.P. view. PW-9 has further stated that after going through the said x-ray plates, the age of the prosecutrix was determined in between 16-17 years. PW-9 has stated in his cross-examination that all the members of the Medical Board had sat together on 17.02.2016 at about 08:30 P.M. and when he had joined the Board meeting, the x-ray plates and pathological reports were already on table. He has also stated that he has not put his signature on the x-ray plates and he does not know as to from where the said x-ray plates were brought. PW-9 has next stated that he had given his opinion regarding age of the prosecutrix on the basis of the charts mentioned in the Forensic Medicine Book but he has no in-depth knowledge of radiology, nonetheless he had given opinion only because there was no qualified Radiologist in the said Medical Board. In paragraph no. 6 of his cross examination, PW-9 has stated that on 17.02.2016, he had taken help of Modi Medical Jurisprudence book for giving his opinion about age. PW-9 has also stated that there may be cases where even after 18 years of age, the epiphysis of femur and proximal epiphysis of tibia and fibula may not be fused and the said position of the bone is known as Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 237/315 knee joint. It is stated that the elbow joints of the victim might have been fused approximately one year prior to the report dated 17.02.2016 and the fusion of knee joints of the victim might have taken place within one year of the date of the report. In para No. 8 of his cross-examination PW-9 has stated that as regards fusion of iliac crest, its fusion takes place at the age of 19 years and on the basis of finding with regard to one bone, the age cannot be assessed. PW-9 has also stated that as per the opinion of "Lall and Townsend" fusion of wrist of a female takes place at the age of 18-19 years. However, we find that on the contrary PW-11, Dr. Kumkum Kumari has stated in para No. 5 and 6 of her cross-examination that on 17.02.2016 x-ray of the prosecutrix was done and upon constitution of the Board, everything has to be done afresh and past x-ray report and any other report had not been put before us. The x-ray of the knee joints, both wrist joints, elbow joints and pelvis of the prosecutrix was done on 17.02.2016 and decision was taken after going through the X-Ray plates.
180. PW-13, Dr. Kumari Preeti Ranjana has stated in her cross- examination that the final report was prepared on the basis of x- ray report, dental examination and report of the pathological test and she had also given her opinion, whereafter the report was Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 238/315 prepared on the basis of the opinion given by the Doctors separately. PW-13 has also stated that x-ray is done at I.G.E.M.S, which is at a distance of five minutes from the chamber of the Civil Surgeon. Thus, it is evident from Exhibit-4 as also from the deposition of the doctors, who were members of the Medical Board that no fresh x-ray of the prosecutrix was conducted on 17.02.2016. We also find from the report of the Medical Board dated 17.02.2016 that x-ray of both the wrist, joint (AP view) shows that epiphyses is in the process of fusion whereas x-ray of both elbow joint (AP view), knee joint (AP view) shows that all epiphyses are fused, however upon examination of x-ray of pelvis, iliac crest appears to have not been fused, thus the same would lead to a finding that the prosecutrix is more than 19 years of age. As far as the presence of Radiologist in the said Medical Board is concerned, there is no dispute that no Radiologist was a part of the aforesaid Medical Board. We also find that I.G.E.M.S has been outsourced and there is an agreement with the health society. PW-8, Dr. Shailendra Kumar (Member of the Medical Board) has stated in his evidence that no doctors work at I.G.E.M.S., the department (obviously x-ray unit) is being run by technicians and three technicians are working there. In Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 239/315 paragraph-3 of his cross-examination, PW-8 has stated that on 17.02.2016, when the victim appeared before the Board, they did not suggest for her fresh x-ray and the x-ray plates of 09.02.2016 was considered by the Board on 17.02.2016. PW-8 has also stated that Technicians did not submit any report along with the x-ray plates. PW-8 has next stated that no Radiologist is posted at Sadar Hospital, Biharsharif. Thus, we find that since there is no evidence on record to suggest that x-ray plates produced before the Medical Board belongs to the prosecutrix apart from the fact that the said x-ray plates were not accompanied by any report of the Radiologist/Expert and moreover, no Radiologist was a part of the Medical Board, the opinion of the Medical Board in its report dated 17.02.2016 cannot be stated to be based upon the prescribed standard medical procedure for age determination, hence the said report dated 17.02.2016 is not reliable, therefore the opinion of the Medical Board, as aforesaid, cannot be said to be a conclusive proof of the age of the prosecutrix.
181. Now coming to the ocular evidence with regard to the age of the prosecutrix, we find that PW-4 (father of the prosecutrix) has admitted in paragraph no. 8 of his cross-examination that he cannot say as to in which year he had got his respective Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 240/315 daughters enrolled at the Primary School at Sultanpur. PW-4 has also stated in his cross-examination that he had not got the birth of his children (including the prosecutrix) registered since they were born at home and he had also not given any documentary proof of their age at the time of their enrolment at the school in question, however he had noted the date of birth of all his children in separate diaries. We find from the evidence on record that PW-4 has withheld such an important evidence pertaining to the age of the prosecutrix inasmuch as he could have very well produced the aforesaid diaries in which he had noted the date of birth of his children, which leads us to assume that such evidence, if produced, would have been unfavourable to the prosecution. In this regard reference be had to Section 114 Illustration (g) of the Act, 1872 which allows the Court to draw an adverse inference against a party for non-production of material evidence or witnesses within their control. In this connection we would gainfully refer to a judgment rendered by the Hon'ble Apex Court in the case of Tomaso Bruno v. State of U.P., reported in (2015) 7 SCC 178, paragraph no. 27 and 28 whereof is reproduced herein below:-
"27. As per Section 114 Illustration (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 241/315 draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 Illustration (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of the Negotiable Instruments Act, where the court has no option but to draw a statutory presumption, under Section 114 of the Evidence Act, the court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 Illustration (g) of the Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.
28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 CrPC and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW 1, PW 12 and PW 13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, the prosecution in possession of the best evidence, CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."
182. Thus, we find that the prosecution/ the prosecutrix has Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 242/315 failed to bring on record any admissible document regarding age of the prosecutrix as also has failed to prove the age of the prosecutrix, more so to the effect that she was a minor on the date of occurrence, even by way of adducing ocular evidence, hence we find that there is no proof that the prosecutrix was below the age of 18 years as on the date of occurrence, especially considering the fact that if at all the medical report of the prosecutrix dated 17.02.2016, furnished by the Medical Board, opining the age of the prosecutrix to be in between 16 to 17 years is considered to be of any worth, then applying the principle laid down by the Hon'ble Apex Court in the case of Vinod Katara (supra), if two years are added to either 16 or 17, the prosecutrix would definitely be a major. Therefore, the provisions of the POCSO Act, 2012 shall not apply in the present case. In this connection, we would like to refer to a judgment dated 30.10.2024, rendered by a coordinate Bench of this Court in Criminal Appeal (DB) No. 550 of 2021 (Mannu @ Saddam @ Md. Mannu Sadam vs. The State of Bihar), wherein it has been held that it is the prosecution which is required to prove not only the minority of the victim for the purposes of application of POCSO Act, 2012 but also the foundational facts of the alleged offence, before the Court raises Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 243/315 presumption under Sections 29 and 30 of the POCSO Act and failure on the part of the prosecution to bring on record admissible documents regarding age of the victim despite availability/ feasibility of such documents would lead to the Court drawing an adverse inference against the minority of the victim.
183. The next issue which arises for adjudication is as to whether the mode, manner and place of occurrence has stood proved or not. As far as the place of occurrence is concerned, we find from the paragraph no. 47 of the deposition of PW-2 (prosecutrix) as also from paragraph no. 78 of the deposition of PW-15 (Investigating Officer) that though it is claimed that the prosecutrix had identified the house where the alleged incident is stated to have taken place, however the prosecutrix was never taken inside the house so that she could identify the exact place/room where the alleged incident had taken place, hence the exact place where the occurrence in question had taken place is yet to be ascertained. In fact on 11.02.2016 itself, when the police party had taken the prosecutrix for the purposes of identification of the perpetrator of crime as also the place of occurrence, the prosecutrix is stated to have recognized the appellant of the first case who was taking a stroll in front of his Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 244/315 house as also she had recognized the house in question where the occurrence had taken place, however the police had neither made any effort to arrest the appellant of the first case from the spot nor any effort was made to obtain warrant of arrest immediately for arresting the appellant of the first case, although under Section 41 of the Code of Criminal Procedure, 1973, any police officer is empowered to arrest a person who has committed a cognizable offence as also for proper investigation of the offence, without any order from the Magistrate and without a warrant. However, in the present case the mandate of Section 41 of the Cr.P.C. has not been complied with, which creates a doubt not only about the role of the police but also regarding the factum of the police and the prosecutrix having gone to the house where the alleged occurrence is stated to have taken place as also with regard to identification of the house in question and the appellant of the first case by the prosecutrix. It is evident from the evidence of PW-5 i.e. Rajeshwar Rai, Assistant Sub-Inspector of Police posted at Mahila Police Station, Nalanda that on 10.02.2016 he had gone along with the prosecutrix to the three cornered round-about but not to Bhadokhra village where they had gone only on 12.02.2016. In fact it would also be apparent from the evidence Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 245/315 of PW-5 that though there are several chimneys but they had straight away reached the chimney about which the prosecutrix had mentioned, nonetheless PW-5 has also not stated in his evidence about having seen any name written on the chimney nor he had seen any board or sign which could have led to identification of the chimney in question. PW-5 has next stated in his evidence that after the prosecutrix is stated to have recognized the chimney in question, they had not gone inside the chimney and had after half an hour returned back to the Mahila Police Station. Thus a doubt is created about the place of occurrence which is stated to be a four storied white house situated at Pathra English.
184. As far as the first place of occurrence i.e. the rented house in which the prosecutrix, her sisters and brother stay, which is situated at Professor Colony, Garhpar, Biharsharif and the house of Sulekha Devi situated at Biharsharif are concerned, we find from the evidence of PW-2 (prosecutrix) and PW-15 (Investigating Officer) that the police had visited the house of the prosecutrix at Garhpar only on 10.02.2016 and not on 09.02.2016 and the police had also thereafter, gone to the house of Sulekha Devi but the same was found locked, nonetheless we find that there is no evidence on record to suggest that Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 246/315 subsequently the house of Sulekha Devi was ever searched by the police. As far as the second place of occurrence situated at Ranisarai, Bakhtiyarpur, stated to be the house of the mother of Sulekha Devi i.e. Radha Devi is concerned, we find from the evidence of PW-2 (prosecutrix) and PW-7 (Sub-Inspector of police) that there is no mention about the police having investigated the said house and made any kind of search. Thus, the alleged places of occurrence have not been conclusively proved by the prosecution. Now coming to the seizure list prepared by PW-15 (Investigating Officer) at the house of the appellant of the first case on 16.02.2016, we find that no suspicious articles have either been recovered or seized as would be apparent from Exhibit-9. Exhibit-11 contains the details of the clothes worn by the prosecutrix on the date of incident i.e. 06.02.2016, which was handed over by PW-1 (elder sister of the prosecutrix) to PW-15 (Investigating Officer) on 26.02.2016, however the same were never produced before the learned Trial Court during the course of the trial as is apparent from paragraph no. 125 of the cross-examination of PW-2 (prosecutrix). Even the F.S.L. report has not been exhibited by the prosecution. We also find that though the prosecution has raised fingers regarding the role of the driver of the appellant of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 247/315 the first case, namely Bishnu, however neither he nor any of the staff members of the appellant no. 1, who are stated by the prosecutrix to be present at the place of occurrence when she was taken there and raped, have either been arrested or interrogated by the police, which further creates a doubt regarding the mode and manner of the incident as also about the happening of the occurrence in question itself.
185. At this juncture itself, it would be relevant to consider the issue as to whether the prosecutrix (PW-2) is a sterling witness or not and whether her evidence is credible, consistent and trustworthy so as to place reliance upon the same for the purposes of conviction of the accused persons. In this regard, we would first of all examine and evaluate the written report filed by the prosecutrix before the police, her statement made under Section 164 Cr.P.C. and her testimony before the learned Trial Court. As regards the initial part of the story, the prosecutrix has stated in the written report that Sulekha Devi had come to her house and asked her to go to a birthday party at Bharaopar, however in her deposition, she has stated that Chhoti Devi had come to her house and taken the prosecutrix to her house where she had asked her to go to a birthday party but the prosecutrix had refused leading to Chhoti Devi persuading her to go to the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 248/315 birthday party, whereafter Sulekha Devi had also pressurized the prosecutrix to go to the birthday party in question, whereupon after much persuasion, PW-2 had told them that she will have to ask her elder sister i.e. PW-1 and then Sulekah Devi and Chhoti Devi had come to the house of prosecutrix and persuaded PW-1 (elder sister of the prosecutrix) to let PW-2 (prosecutrix) go with them for the birthday party. In the written report, prosecutrix has stated that she had gone to the birthday party on 06.02.2016 along with Sulekha Devi and her daughter Chhoti Devi, however in her deposition she has stated that she had left for birthday party along with Sulekha Devi, Chhoti Devi, daughter of Chhoti Devi, namely Tuktuk and one 8-10 years old girl. As far as the time of leaving the house of the prosecutrix for going to the birthday party is concerned, with regard to the same also there is contradiction in the statements of the prosecutrix. In fact there is material contradiction in the written report and the deposition of the prosecutrix as regards the persons who had taken her to Ramchandarpur Bus Stand and from there to Bakhtiyarpur. Even on the point of vehicle used for ferrying the prosecutrix and others from Bakhtiyarpur to Pathra English, there is material contradictions.
186. Again there is inconsistency with regard to the place Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 249/315 where four storied building in question is situated. The prosecutrix has stated in paragraph no. 41 of her deposition that she had not found any railway crossing on way from Bakhtiyarpur to Giriyak/Pathra English, however on the contrary, PW-4 (father of the prosecutrix) has stated in paragraph no. 20 of his deposition that there is a railway crossing in between Bakhtiyarpur and Giriyak/Pathra English. The prosecutrix has not mentioned in the written report, that while going to Pathra English from Bakhtiyarpur they had stopped at a brick kiln at Giriyak from where Sulekha Devi had made a call to someone and informed that person that they have reached, however in her deposition she has mentioned about the same. Yet again we find that though the prosecutrix has stated that the occurrence had taken place at a four storied building, however the appellant of the first case, in his statement made under Section 313 Cr.P.C. has categorically stated that his house is only three storied. In this regard it has been pointed out by the learned senior counsels for the appellants, during the course of hearing of the aforesaid Appeals that the video which has been exhibited in the present case clearly shows that the building in question is a three storied building. Thus, apparently there are material contradictions in between the version of the prosecutrix Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 250/315 as stated in the written report vis-a-vis her deposition.
187. We would, at this juncture take note of one another circumstance which is that though the prosecutrix had left home to go to Bharao Par but instead had gone to Ramchandarpur Bus Stand at Biharsharif, from where she had travelled to Bakhtiyarpur where she had dinner and thereafter, she had sat in a Bolero vehicle with three strangers, Radha Devi, Sulekha Devi and one 8 to 10 years old girl and gone to Giriyak/Pathra English, nonetheless she had not raised any alarm at any given moment of time and had also not persuaded anyone to drop her back to her residence. This conduct of the prosecutrix leaves a mark of doubt to treat her testimony as so natural and truthful to inspire confidence. Thus, all the intervening circumstances as also the aforesaid material contradictions in her statement would show that the prosecutrix, who has deposed as PW-2 is not a reliable witness, thus does not fall within the ambit of a sterling witness, hence her testimony cannot be relied upon for the purposes of adjudging the guilt of the appellants. Although it is a well settled law that conviction can definitely be based on the sole testimony of the prosecutrix when the evidence of the prosecutrix is found to be trustworthy, unblemished, credible and that of a sterling quality, however as far as the present case Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 251/315 is concerned, we find that the evidence of the prosecutrix cannot be stated to be of sterling quality and is not such, upon which reliance can be placed.
188. We have also perused the evidence of PW-1 (elder sister of the prosecutrix), PW-2 (prosecutrix), PW-4 (father of the prosecutrix), PW-5 (police official), PW-7 (police official) and PW-15 (Investigating Officer) and found that though PW-1 (elder sister of the prosecutrix), PW-2 (prosecutrix) and PW-4 (father of the prosecutrix) have stated that prosecutrix along with Sulekha Devi, Radha Devi and 08-10 years old girl had gone from Bakhtiyarpur to Giriyak, however, PW-15 (Investigating Officer) has admitted in her deposition at paragraph no. 98 that location of mobile of Sulekha Devi was never found at Giriyak or Pathra English. Similarly, while PW-2 (prosecutrix) has stated in paragraph no. 58 of her deposition that the vehicle and driver were different while returning back from the place of occurrence vis-a-vis while going to the place of occurrence, however PW-15 (Investigating Officer) has stated in paragraph no. 65 of her evidence that it has transpired during the course of investigation that only one white colour Bolero vehicle was used for taking and bringing back the victim from Pathra English. In paragraph no. 66 of her cross-examination, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 252/315 PW-15 (Investigating Officer) has admitted that nobody had seen the prosecutrix and others, either going in or coming out of the house of the appellant of the first case. As regards the place where the prosecutrix was taken and allegedly raped, she has stated in her statement made under Section 164 Cr.P.C. that she had read on a board and come to know that she has been taken to Giriyak whereas in her deposition she has stated that when she asked Sulekha Devi about the place where they had come, she had told her that they had come to Giriyak. Another incongruity which can be culled out from the evidence is that PW-15 (Investigating Officer) has stated in her evidence in paragraph no. 48 that on 09.02.2016 before 02:00 p.m. she had recorded the statement of two independent witnesses who had stated that they had come to know about the incident from the newspaper but the written report was filed only on 09.2.2016 at 10:30 a.m., leading to lodging of FIR, thus it is intriguing as to how the news regarding the alleged occurrence could have been reported in the newspaper on 09.02.2016 itself.
189. One other aspect of the matter is as to whether the prosecutrix and/or the Investigating Officer had gone to Pathra English for investigation on 11.02.2016. In this regard, if the evidence of PW-1 (elder sister of the prosecutrix), PW-2 Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 253/315 (prosecutrix), PW-5 (Assistant Sub-Inspector of Police), PW-7 (Sub-Inspector of Police) and PW-15 (Investigating Officer) are taken into consideration, it would transpire that the date and time of taking the prosecutrix for investigation and returning back from investigation is varying, thus a doubt is created as to whether at all the prosecutrix was taken for investigation on 11.02.2016. Again, though PW-2 (prosecutrix) has not stated about going to village Bhadokhra during the course of investigation, however PW-5 (police official), PW-7 (police official) and PW-15 (Investigating Officer) have stated about going to village Bhadokhra, where they came to know about the house in question. Yet again while PW-2 (prosecutrix) has stated that when she was being taken to Pathra English in the night of the occurrence i.e. 06.02.2016, she neither got down from the vehicle at the brick kiln in question nor she could see outside the vehicle since it was dark nor she had seen whether the brick kiln had a boundary wall and whether bricks were kept there, however in the deposition, the prosecutrix claims to have taken the police to the brick kiln on her own and identified the same, which definitely creates a doubt about the mode and manner of occurrence and as to whether any occurrence had at all taken place, as alleged. Another important inconsistency can be culled Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 254/315 out from the fact that though PW-7 (Sub-Inspector of Police) and PW-15 (Investigating Officer) have stated in paragraphs no. 10 and 62 of their deposition that they had used the police vehicle for the purposes of investigation on 10/11.2.2016, after calling for the same from the police line, however a bare perusal of Defence Exhibit No. Z and Z/1 (R.T.I. information obtained from the police line) would show that in between 09.02.2016 to 16.02.2016, no vehicle was given for conducting investigation of the present case.
190. Thus, the aforesaid inconsistencies and contradictions in the statement of the witnesses creates a doubt about the manner in which the prosecutrix had identified either the brick kiln or the building in question or the appellant of the first case. In fact, a bare perusal of the evidence of PW-2 (prosecutrix), PW-5 (Assistant Sub-Inspector of Police), PW-6 (Assistant Sub- Inspector of Police), PW-7 (Sub-Inspector of Police) and PW-15 (Investigating Officer) would show that there is material contradiction in their statements with regard to the place from where the building in question as also the appellant of the first case was identified by the prosecutrix. The learned senior counsel for the appellant of the first case has, during the course of arguments asserted that the nearest point from where the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 255/315 appellant of the first case has been stated to have been identified is 40-50 yards before the building, however a perusal of the videos and photographs exhibited by both the parties would show that it is not possible to do so on account of presence of huge plantation there. In fact though the prosecutrix is stated to have identified the appellant of the first case, whose photograph was present on a poster at Nawada Chowk but the same has not been exhibited and on the contrary though the prosecutrix had passed through the Nawada Chowk while going to Hisua on 10.02.2016 as also while returning back from Hisua but she did not find/identified any poster of the appellant of the first case at that point of time at Nawada Chowk.
191. We find from the written report of the prosecutrix, her statement recorded under Section 164 Cr.P.C. & her deposition that there are several contradictions and inconsistencies in her statement, which are being encapsulated herein below:-
(i) While in FIR, PW-2 has disclosed the name of the husband of Sulekha Devi but in paragraph no. 118 of her cross-examination she has stated that she is not aware of the name of husband of Sulekha Devi further and as far as her statement recorded under section 164 Cr.P.C is concerned, she has not disclosed the name of the husband of Sulekha Devi.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 256/315
(ii) PW-2, in paragraph no. 56 of her cross-examination has stated that there was no blood stain on her Salwar but PW-3 in paragraph no. 15 of her cross examination has stated that she had seen blood stain on the clothes of the prosecutrix and when she asked her about the same, she did not say anything.
(iii) PW-2, in paragraph no. 67 of her cross-examination has stated that she went for medical examination from Police Station and her father and her sister (PW-1) did not come to hospital for medical examination and she had gone alone, however PW-1 has stated in paragraph no. 64 of her cross examination that she had gone to the hospital along with the Prosecutrix for her medical examination and her father (PW-4) might have come in another car as also during the course of medical examination she along with her father were sitting in the Hospital and after completion of the medical examination of the Prosecutrix, she also sat along with them.
(iv) PW-1, in paragraph no. 65 of her deposition has stated that on 10.02.2016, the prosecutrix and PW-4 had gone to the police station twice, firstly in the afternoon when she along with PW-2 and PW-4 had gone to the police station, whereafter they had returned back to the residence in the evening and after one hour PW-2 (prosecutrix) and PW-4 had again gone to the police station but in the night both of them did not return.
(v). Further, PW-2 in paragraph no. 68 of her cross examination has stated that on 10.02.2016 police personal had come to her house situated at Garhpar before Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 257/315 afternoon and they had called PW-2 for investigation as also she has stated in paragraph no. 69 of her cross examination that no family member was present with her during the course of investigation at Giriyak and her father was sitting at the police station in the night, however PW-15 in paragraph no. 56 of her cross examination has stated that on 10.02.2016 at 10:30 PM she had formed a team along with the prosecutrix and her father for investigation and arresting the accused.
192. The aforesaid scrutiny and analysis of the evidence of the Prosecution witnesses would depict presence of significant contradictions on crucial details and moreover, the aforesaid contradictions and inconsistencies pertain to the core elements of the alleged crime which not only undermines their reliability but also manifests that the witnesses are not truthful as also the evidence is unreliable, hence no conviction can be based on the evidence of such witnesses.
193. Therefore, it is discernible that not only the mode, manner and place of occurrence have not stood proved conclusively but the prosecutrix can also not be said to be truthful and a sterling witness, hence her sole testimony cannot be relied upon for the purposes of sustaining the conviction of the appellants. Reference in this connection be had to a judgment rendered by the Hon'ble Apex Court in the case of Santosh Prasad vs. The Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 258/315 State of Bihar, reported in (2020) 3 SCC 443, paragraphs no. 6 & 7 whereof are reproduced herein below:-
"6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall the accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 o'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4.00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW 1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW 5, prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix, PW 5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and the accused is to be given the benefit of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 259/315 doubt.
7. In view of the above and for the reasons stated above, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned trial court and confirmed [Santosh Prasad v. State of Bihar, 2018 SCC OnLine Pat 6648] by the High Court are hereby quashed and set aside. The appellant is acquitted from all the charges levelled against him and he be set at liberty forthwith, if not required in any other case."
194. It would also be appropriate to refer to a judgment rendered by the Hon'ble Apex Court in the case of Krishan Kumar Malik vs. The State of Haryana, reported in (2011) 7 SCC 130, paragraphs no. 31, 32, 42, 43, 44, 46 and 47 whereof are reproduced herein below:-
"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 260/315 over by the appellant.
42. On account of the aforesaid shortcomings, irregularities and lacuna on the part of the prosecution, in our considered opinion, it will not be safe to convict the appellant.
43. With regard to the matching of the semen, we find it from Taylor's Principles and Practice of Medical Jurisprudence, 2nd Edn. (1965) as under:
"Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatozoa often after 12 months and once after a period of 5 years. Non-motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months."
Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the appellant.
44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 261/315
46. Thus, looking to the matter from all angles, we are of the considered opinion that the conviction of the appellant cannot be upheld.
47. Thus, the appeal is hereby allowed. The judgment and order of conviction as recorded by the trial court and confirmed by the learned Single Judge of the High Court qua the appellant are hereby set aside and quashed. The appellant is acquitted of all the charges. He be set at liberty forthwith if not required in any other criminal case.
195. At this juncture, it may be relevant to state that though the appellant of the first case was taken for interrogation by the police, after he had surrendered before the learned Trial Court, however his medical examination was not conducted.
196. The other issue which is required to be determined is the significance of medical evidence on record and its credibility as also whether the same corroborates the prosecutrix's account of assault (rape) or not. The evidence on record shows that the prosecutrix was first medically examined by Dr. Krishna on 09.02.2016, however the medical report of Dr. Krishna has been withheld conspicuously by the prosecution, nonetheless we have perused the evidence of PW-15 (Investigating Officer), from which we find that in paragraph no. 73 of her cross- examination, PW-15 has stated that on 12.02.2016 she had received the report of Dr. Krishna dated 09.02.2016, which was noted in the case diary, wherein it has been written as follows:-
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 262/315 "X-ray handed over to the police", however PW-15 has stated that no x-ray plates were given to her along with the medical report. PW-15 has also stated in her evidence that she had perused the said medical report of Dr. Krishna and the said report mentions that there is no evidence of "forceful sexual intercourse" as also the said doctor has found that the prosecutrix is used to sex. As far as the report of Medical Board dated 17.02.2016 is concerned, which has been marked as Exhibit-4, we find that the Medical Board, upon examination of the prosecutrix, found her to be conscious, oriented, average built, her secondary sexual characters were well developed, no injury had occurred and no injury was found on the private parts of her body. Upon P.V. examination of the prosecutrix, it has been found that vagina admitted two fingers easily, hymen is old ruptured and no injury is present inside the vagina. In fact vaginal Swab was taken for microscopic examination and upon microscopic examination, no spermatozoa was found, R.B.C.-
Nil, W.B.C.-Nil and Epithelial cell was present (1+). The Urine Pregnancy test of the prosecutrix was negative. As far as dental examination is concerned, 28 teeth were found to be present and the findings of the x-ray examination has also been stated in the said report. The final opinion given in the said report is that on Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 263/315 the basis of the physical, dental, radiological and pathological examination, the age of the prosecutrix is in-between 16 to 17 years and rape could not be ruled out.
197. Thus we find from the medical report dated 17.02.2016, prepared by the Medical Board, after examination of the prosecutrix that the Medical Board has recorded the following findings:-
(i) No injury occurred.
(ii) No injury on the private part of the body.
(iii) Vagina admitted two fingers easily.
(iv) Hymen old ruptured.
(v) No injury inside the vagina.
(vi) Spermatozoa not found.
(vii) Rape cannot be ruled out
198. Now coming to the ocular evidence on the aforesaid issue, we find that PW-11, Dr. Kumkum Kumari has stated in paragraph no. 5 of her cross-examination that in case some virgin and nubile girl is forcibly raped, injuries can be present in the outer and inner part of the private parts and possibility is there of injuries being present on the buttock, on the thighs and the back. PW-11 Dr. Kumkum Kumari has also stated in her evidence that no proof of sexual intercourse was found on the body of the prosecutrix during the course of her examination. In fact PW-13 Dr. Kumari Preeti Ranjana has stated that no evidence of sexual violence was found on the body of the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 264/315 prosecutrix. PW-15 (Investigating Officer) has also stated in her evidence that the F.S.L. team had submitted a report on 16.02.2016, wherein also no evidence of rape was found. It is evident from a bare perusal of the finding of Dr. Krishna, as mentioned in her medical report dated 09.02.2016 as also the opinion/findings of the Medical Board recorded in the medical report dated 17.02.2016, as aforesaid qua the prosecutrix that the possibility of sexual intercourse/rape having been committed with her has been ruled out. In fact the Medical Board has conclusively found that the prosecutrix is not a virgin and is used to sexual intercourse as also hymen is old ruptured and no injury is present either on the body of the prosecutrix or on her private parts much less inside the vagina. Thus, we find from the evidence placed on record, as aforesaid that the medical evidence does not support the commission of rape. It is a well settled law that in case medical evidence does not support the case of prosecution relating to offence of rape, the sole testimony of the prosecutrix ought to be discarded. In this connection, reference be had to a judgment rendered by the Hon'ble Apex Court in the case of Sham Singh vs. State of Haryana, reported in (2018) 18 SCC 34, para nos. 6, 9, 13, 18, 24 and 25 whereof are reproduced herein below:-
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 265/315 "6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults.
9. The medical examination of the victim was conducted by Dr Rekha Singh (PW 6), Medical Officer, General Hospital, Palwal. She has deposed that the victim was aged about 15 years at the time of the incident and had sustained an injury on the left side of the forehead and such injury is nothing but a small abrasion with crust formation. The organs of generation were fully developed and the secondary organs were also fully developed. The vagina of the victim permitted two fingers. However, the doctor observed the absence of hymen and did not mention the age of tear of the hymen because the tear was old. The vaginal swab and the salwar worn by the victim during the course of the incident were sent by the doctor to forensic sciences laboratory for chemical examination, but no presence of semen was found on any of these exhibits. Finally, however, the doctor has opined that the possibility of sexual assault upon the victim cannot be ruled out, though she did not specify as to whether the sexual assault was in the recent past. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 266/315
13. The aforementioned witnesses are the only relevant prosecution witnesses for deciding this appeal. Looking to the above evidence, it is amply clear that the case of the prosecution, as made out, appears to be artificial and concocted. It may not be probable to commit rape in one's own house in front of the sister, children, wife and mother. If in actuality the incident had taken place, the medical report would have gone against the accused. Be that as it may, before commenting anything further, it is better to discuss the evidence of the defence also.
18. The evidence of DW 1 and DW 2 was not shaken in the cross-examination. There is nothing on record to discard the evidence of these witnesses. DW 1 and DW 2 are panchayatdars and are independent witnesses. Moreover, DW 1 is a relative of both, the victim and the accused and he does not have any grudge against the victim. The evidence of DW 1 and DW 2 have practically remained untouched and their version fully supports the stand taken by the accused persons. It is specifically deposed by DW 1 that he has seen the house of Laxmi (PW 10), where the victim was staying, and the said house is having bathroom and latrine. If it is so, there was no occasion for the victim to go out of the house for the purpose of urinating. These facts, coupled with the fact that there is no medicolegal report to support the case of the victim relating to offence of rape, and as there are no injuries on the body of the victim, which is also admitted by PW 10, it appears that the prosecution has cooked up the story against the accused for the reasons best known to them.
24. We find that the trial court and the High Court have convicted the accused merely on conjectures and surmises. The Courts have come to the conclusion based on assumptions and not on legally acceptable evidence, but such assumptions were not well founded, inasmuch as such assumptions are not corroborated by any reliable evidence. Medical evidence does not support the case of the prosecution relating to offence of rape.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 267/315
25. For the reasons aforementioned, the offence of rape does not stand proved. Accordingly, the appellant deserves to be acquitted, by allowing this appeal. As mentioned supra, the first accused Jai Singh has already served out the sentence imposed upon him, and the appellant before this Court has already served the sentence of seven years out of the total sentence of ten years imposed upon him."
199. It is equally a well settled law that where the medical evidence rules out the possibility of the ocular evidence being true, the ocular evidence may be disbelieved. Reference in this connection be had to a judgment rendered by the Hon'ble Apex Court in the case of Abdul Sayed vs. State of Madhya Pradesh, reported in (2010) 10 SCC 259, paragraph no. 39 whereof is reproduced herein below:-
"39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
200. It would be apropos to refer to yet another judgment on the issue of medical evidence not supporting the case of prosecution i.e. the one rendered by the Hon'ble Apex Court in the case of Tameezuddin vs. State (NCT of Delhi), reported in Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 268/315 (2009) 15 SCC 566, paragraph nos. 9, 11, 13 and 16 whereof are reproduced herein below:-
"9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable.
11. As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been committed were not examined in court as witnesses though their statements had been recorded during the course of the investigation. In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co-related to the appellant as his blood samples had not been taken.
13. We also see from the orders passed by this Court from time to time and particularly the order of 25-10-2004 that the counsel for the appellant had pointed out that though the appellant had been sentenced to imprisonment for a term of seven years, he had already exceeded that period but was still in custody and he was accordingly bailed out after verifying this fact on 16-11-2004.
16. We accordingly allow the appeal, set aside the judgments of the trial court and the High Court and order the appellant's acquittal."
201. We find that it has been consistently held that if evidence of the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 269/315 belie the case set up by the prosecution, the Court shall not act on the solitary evidence of the prosecutrix. In this connection, reference be had to a judgment rendered by the Hon'ble Apex Court in the case of Manak Chand @ Mani vs. State of Haryana, reported in (2023) SCC online SC 1397, paragraphs no. 8 to 12, 16 and 19 whereof are reproduced hereinbelow:-
"8. This was reiterated by this Court in Sadashiv Ramrao Hadbe v. State of Maharashtra, (2006) 10 SCC 92:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix."
9. Both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence. Relying upon the case of Gurmit Singh (supra) this court in Raju v. State of Madhya Pradesh, (2008) 15 SCC 133 held as under:
"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 270/315 which comes before the court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
10. Does the testimony of the prosecutrix in the present case inspire confidence? We are afraid it does not. Let us appreciate the facts once again. Although, the first incident of rape is alleged to be of 12.09.2000, the prosecutrix does not disclose this to anyone immediately. She then alleges rape again on two or three different occasions later, though no date and time are disclosed. She only discloses it to her mother after one and half months. It has then come in the evidence led by none other but the prosecution (in the school register submitted in the court by PW-2 i.e., Ram Sahay), that the prosecutrix had attended her classes in the school on 12.09.2000 at Dabwali, where she resides with her parents. We must note that she has alleged rape on the same day at village Sanwat Khera, where she was staying at the relevant time with her sister in her matrimonial house. This seems improbable, if not impossible. The other aspect is the admitted position of the prosecution itself that the FIR was ultimately filed as the initial proposal of marriage was then turned down. All these facts do cast a doubt on the story of the prosecution.
11. The prosecution then has also relied upon the medical Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 271/315 report of the prosecutrix given by Dr. Kulwinder Kaur as PW-1 which states that the hymen of the prosecutrix was ruptured, and therefore she was raped. To the contrary when we examine the same medical report in detail an entirely different picture emerges. The Trial Court, however relied upon the evidence placed by the prosecution regarding the date of birth of the prosecutrix, which was recorded in the school register as 04.04.1987 and therefore at the time of the alleged offence she was only thirteen and half years of age and thus the finding of the Trial Court is that, even if it is assumed for the sake of argument that the prosecutrix was a consenting party to the sexual intercourse, her consent would be immaterial since she was less than sixteen years of age and therefore the offence of rape stands proved. The High Court in the appeal, however, even discards the presumption of the prosecutrix being a consenting party and has completely relied upon the testimony of the prosecutrix regarding rape and has dismissed the appeal.
12. The evidence, as to the age or even rape has not been examined properly by the Trial Court as well as the High Court. Courts must examine each evidence with open mind dispassionately as an accused is to be presumed innocent till proved guilty. In our adversarial system of criminal jurisprudence, the guiding principle shall always be the Blackstone ratio which holds that it is better that ten guilty persons escape than one innocent be punished.
16. Secondly, we cannot lose sight of the fact that since age was such a crucial factor in the present case, the prosecution should have done a bone ossification test for determination of the age of the prosecutrix. This has not been done in the present case. On the other hand, as per the clinical examination of the prosecutrix which was done by PW-1, Dr. Kulwinder Kaur on 28.10.2000 and which has also been referred to in the preceding paragraph of the present judgment, we find that the secondary sex characteristics of the prosecutrix were well Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 272/315 developed. The doctor in her report mentions that the prosecutrix is a "well built adult female". At another place it mentions "well developed pubic hair" and "external genitalia were fully developed and normal". It then records her age as sixteen years as told to her by the mother of the prosecutrix. The report records that there were no external marks of injury over her breast, neck, face, abdomen and thigh. The report then concludes, inter alia, about her age as under:
"At the time of medical examination of the patient, no force seems to have been used against her. I cannot opine about the age of the patient on the basis of development of her pubic hairs and genitalia etc. The patient was habitual to sexual intercourse because her labia minora was hypertrophied and hymen admitted two fingers."
19. Under these facts, and on the weight of the evidence placed before the Trial Court, we are of the considered opinion that as regarding the age of the prosecutrix, no definite conclusion could have been made. The prosecution has not successfully proved that the prosecutrix was less than sixteen years of age at the time of the alleged commission of the crime, and therefore the benefit ought to have been given to the appellant. Secondly, as to the factum of rape itself, we are not convinced that an offence of rape is made out in this case as it does not meet the ingredients of Rape as defined under Section 375 of the IPC, as we do not find any evidence which may suggest that the appellant, even though had sexual intercourse with the prosecutrix, it was against her will or without her consent."
202. It is also worthy to note that the conduct of a person making a statement should also be considered along with intervening circumstances so as to arrive at a just conclusion though it is a settled law that in a rape case the accused can be Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 273/315 convicted on the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach and is capable of inspiring confidence in the mind of the Courts, however if the testimony of the prosecutrix is unsupported by any medical evidence, the entire associated/ surrounding circumstances leave a mark of doubt to treat the testimony of the prosecutrix natural and truthful to inspire confidence, then the Court shall not act on the solitary evidence of the prosecutrix. It has been consistently held that not only the prosecutrix but the accused also has a right for a fair trial. Reference be had to a judgment rendered by the Hon'ble Apex Court in the case of Zahira Habibulla H. Sheikh v. State of Gujarat, reported in (2004) 4 SCC 158, paragraphs no. 38 to 40 whereof are reproduced hereinbelow:-
"38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny. Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 274/315
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial.
40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."
(emphasis supplied)
203. In the case of Naveen v. State of M.P., reported in (2023) 17 SCC 381, the issue regarding significance of a fair trial has been considered in paragraphs no. 19 to 21, which are reproduced hereinbelow:-
19. In Best Bakery, this Court has observed that the principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapting to new and changing circumstances, and exigencies of the situation--peculiar at times and related to the nature of crime, persons involved--directly or operating behind social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system. The concept of fair trial entails familiar triangulation of interests of the accused, the victim, and the society.
20. It was further observed that there can be no analytical, all-comprehensive or exhaustive definition of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 275/315 the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. Each one has an inbuilt right to be dealt with fairly in a criminal trial.
Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor, and the atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial. It is thus settled that a hasty trial in which proper and sufficient opportunity has not been provided to the accused to defend himself/herself would vitiate the trial as being meaningless and stage- managed. It is in violation of the principle of judicial calm.
21. The principle of "judicial calm" in the context of a fair trial needs to be elaborated for its observance in letter and spirit. In our view, in the hallowed halls of justice, the essence of a fair and impartial trial lies in the steadfast embrace of judicial calm. It is incumbent upon a Judge to exude an aura of tranquillity, offering a sanctuary of reason and measured deliberation. In the halls of justice, the gavel strikes not in haste, but in a deliberate cadence ensuring every voice, every piece of evidence, is accorded its due weight. The expanse of judicial calm serves not only as a pillar of constitutional integrity, but as the very bedrock upon which trust in a legal system is forged. It is a beacon that illuminates the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 276/315 path towards a verdict untainted by haste or prejudice, thus upholding the sanctity of justice for all.
204. Now coming back to the present case, we find that there are such circumstances which create a doubt about the case as set up by the prosecutrix/prosecution. PW-3 (sister of the prosecutrix) in paragraph no. 3 of her cross-examination has stated that birthday of the daughter of Chhoti Devi, namely Tuktuk was celebrated on 30.01.2016, wherein Sulekha Devi and Chhoti Devi had called her, the prosecutrix and her elder sister but they had not gone to the said birthday party since they were not on good terms. The prosecutrix in her evidence has stated that no incident of rape had ever taken place earlier, nonetheless, we find from the medical evidence on record that the prosecutrix has been found to be used to sex, hymen has been found to be old ruptured, no injury has occurred anywhere on the body of the prosecutrix much less on her private parts and there is no evidence of forceful sexual intercourse. Another circumstance which we would like to point out is regarding the conduct of the prosecutrix, her sister and father in filing the written report. The prosecutrix has stated in her evidence that she had narrated the incident to her elder sister (PW-1) on 07.02.2016, whereafter PW-1 had informed their father on 07.02.2016 itself that the prosecutrix was medically ill, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 277/315 however, he was not informed about the commission of rape with the prosecutrix since their mother was ill and then the father of the prosecutrix i.e. PW-4 had reached Biharsharif in the evening of 08.02.2016, whereafter the entire incident was narrated to him, whereupon on the next day i.e. 09.02.2016 at about 10:00 a.m., the prosecutrix along with PW-1 (elder sister of the prosecutrix) and their father i.e. PW-4 had left their residence to lodge FIR, however Exhibit-J/2 read with Exhibit- K shows that PW-1 did not make any call to her father either on 06th or 07th or 08th of February, 2016 and for the first time PW-4 (father of the prosecutrix) had called PW-1 (elder sister of the prosecutrix) on 09.02.2016 at 06:52:07 and again at 10:21:08. This fact also stands corroborated from the evidence of PW-15 (Investigating Officer), especially paragraph no. 98 of her deposition. Thus, these circumstances makes the entire occurrence in question highly improbable, raises a question mark regarding the bonafide of the prosecutrix, her sisters and her father and negate the case set up by the prosecution.
205. Another circumstance which we may delve upon is that though the prosecutrix was to return from the birthday party in the evening around 06:00 p.m. on 06.02.2016, nonetheless when the prosecutrix had not returned back not only in the evening Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 278/315 but all throughout the night, neither any urgency was shown by the sisters of the prosecutrix i.e. PW-1 and PW-3 much less her brother nor they had informed their father i.e. PW-4 nor they had approached the police station which is at a distance of only 200-300 yards from their residence. Yet another circumstance which is intriguing is that though the prosecutrix had to go to a birthday party on 06.02.2016 at Bharao Chowk situated near her residence at Biharsharif itself, however the prosecutrix had not at any point of time raised any objection or alarm or had made attempts to escape when she was instead firstly taken to Ramchandarpur Bus Stand from where she was made to sit on a bus and taken to Bakhtiyarpur to the house of the mother of Sulekha Devi, namely Radha Devi, from where she was made to sit on a Bolero vehicle and taken to Giriyak and then to the house in question where the alleged occurrence is stated to have taken place, situated at Pathra English. Thus, considering the entire surrounding circumstances, which are highly implausible, the fact that the evidence of the prosecutrix is unsupported by any medical evidence as also having regard to the contradictions and inconsistencies in the statement of the prosecutrix/ prosecution witnesses made at different points of time i.e. in the written report/statement made under Section 164 Cr.P.C./ Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 279/315 deposition, the case set up by the prosecution appears to be highly improbable and irresolute. In this connection, we would like to refer to a judgment rendered in the case of Md. Ali vs. State of U.P., reported in (2015) 7 SCC 272, paragraph no. 29 whereof is reproduced herein below:-
"29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished a number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon."
206. We would also refer to yet another judgment rendered by Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 280/315 the Hon'ble Apex Court in the case of Mussudin Ahmad vs. The State of Assam, reported in (2009) 14 SCC 541, paragraphs no.10 to 18 whereof are reproduced herein below:-
"10. So far as the question of age of the prosecutrix is concerned, PW 1 Dr. Pratap Ch. Sarma who had examined her, opined that she was 18 years of age. According to the prosecutrix she was only 13 years of age at the time of incident. PW 2 Abdul Hai Laskar, the informant, deposed that the prosecutrix was 13/14 years of age. However, PW 3 Mrs. Hasmat Ara Begum kept silence on this point. There is nothing on record to show as on what basis, PW 2 Abdul Hai Laskar had given her age. It appears very unnatural as none of the family members of the prosecutrix comes to the scene. Her parents or either of them or any other family member could be most reliable and natural witness on the point of her age. PW 2 Abdul Hai Laskar, in his examination-in- chief stated as under: "Later the girl's mother came and took her away. At present she is staying with her parents." Thus, it cannot be assumed that the prosecutrix did not have parents or other family members. The prosecution for the reasons best known to it examined her employer PW 2 Abdul Hai Laskar and his wife PW 3 Hasmat Ara Begum but did not examine any of her family member on the point of age.
11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohd. Haji Latif [AIR 1968 SC 1413] ).
12. The trial court and the High Court proceeded with Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 281/315 altogether different set of facts. Before the trial court the prosecution case had been that the prosecutrix went to the zoo along with Suleman and on her return from the zoo the appellant had seen both of them together and slapped Suleman who ran away and thereafter the appellant took the prosecutrix on the pretext of taking her to movie and roamed; took her on a rickshaw to the hotel where she was kept and raped.
13. However, before the High Court the case has been entirely different as in para 5 of the High Court judgment it has been stated that when the prosecutrix came out from the house of the informant PW 2 Abdul Hai Laskar the appellant met her and proposed to take her to witness a movie and she went along with him. In para 2, the High Court has mentioned the facts that as per the FIR lodged by PW 2 Abdul Hai Laskar, to the effect that "on the previous evening, the appellant-accused Mussauddin Ahmed @ Musa entered into the house and forcibly abducted his maidservant". There had been material contradictions regarding the factual aspects of the incident itself.
14. There is nothing on record to show, or furnishing any explanation as to why the investigating officer did not seize any material objects like clothes, blood samples, etc. from the prosecutrix and the place of occurrence. PW 4 Mira Begum, the prosecutrix has stated in her examination-in-chief as under: "He took me to a room at Paltan Bazar. There the accused forcibly tears open my clothes." The torn clothes were not recovered by the investigating officer.
15. The IO did not make any effort to take the semen, blood samples, etc. from the appellant which could have given the prosecution an opportunity to obtain medical reports of the appellant as it was necessary to establish the guilt of the appellant. No person has been examined from the hotel to identify the appellant or the prosecutrix as the IO has only seized the register of the hotel to Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 282/315 establish that Room No. 102 was booked in the name of appellant Mussauddin Ahmed and Marzina Begum as husband and wife. Admittedly, the name of the prosecutrix was not Marzina Begum. Therefore, some person from the hotel should have been examined to identify her as well as the appellant.
16. Learned Standing Counsel for the State, Mr Jr. Luwang, could not satisfy the court as to why in the absence of any allegation of threat or coercion, the prosecutrix could not have raised the alarm or informed any person on the road. Nor could he explain as to why an independent witness or an employee of the hotel was not examined and why the parents of the prosecutrix were not examined to find out her age.
17. The prosecutrix appears to be a lady used to sexual intercourse and a dissolute lady. She had no objection in mixing up and having free movement with any of her known person, for enjoyment. Thus, she appeared to be a woman of easy virtues.
18. In this view of the above, we are of the considered opinion that the prosecution failed to prove its case against the appellant beyond reasonable doubt. The appeal is allowed. The impugned judgments of the High Court and the trial court are set aside. The appellant is acquitted of the charge under Section 376 IPC. The appellant is on bail. His bail bonds are discharged."
207. At this juncture, we would also like to refer to the well settled principle of law that even in a case of rape the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts as also it is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused and moreover, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 283/315 there is an initial presumption of innocence of the accused as also the prosecution has to bring home the offence against the accused by reliable evidence. Reference in this connection be had to a judgment rendered by the Hon'ble Apex Court in the case of Narendra Kumar vs. State (NCT of Delhi), reported in (2012) 7 SCC 171, paragraphs no. 19 and 27 to 33 whereof are reproduced hereinbelow:-
"19. If the evidence on record referred to hereinabove is appreciated, the following picture emerges:
(i) The prosecutrix and the appellant were known to each other for a long time and there had been some relationship/intimacy between them.
(ii) Sahib Rao (PW 3), husband of the prosecutrix did not like the said relationship.(iii) There has been some incident two-three days prior to the actual incident on 16-9-1998 as Indira, prosecutrix had lodged some complaint against the appellant in the police as well as with the parents of the appellant.
(iv) The complaint lodged by the prosecutrix two-three days prior to 16-9-1998 with the police had never been placed on record.
(v) The alleged incident dated 16-9-1998 had occurred on the side of the main road which remains busy and had sufficient light and in spite of the fact that the prosecutrix raised hue and cry, nobody came to help her.
(vi) There are contradictions on the issue as to whether the prosecutrix went to the working place of her husband and from there she proceeded to police station with him as evidence on record is also to the contrary i.e she straightaway went to the police station and one constable had gone and called her husband.
(vii) Medical evidence does not positively support the case of the prosecution as Dr Nisha (PW 9) deposed that seeing her condition and torn clothes it could be said Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 284/315 that the prosecutrix might have been raped.
(viii) Admittedly, there is the most material contradiction in the medical evidence and ocular evidence. Dr Nisha (PW 9) had categorically recorded in the report and deposed in the court that the prosecutrix was having nail marks on her breast though the case of Indira, prosecutrix had been that she was having nail marks on her throat.
(ix) The deposition of Lekh Raj (PW 6), SI, about the arrest of the appellant between intervening night of 30-
10-1998 and 1-11-1998 at about 11.45 p.m., seems to be improbable. According to him, the prosecutrix walked from her house to the police station at a distance of 3 km at midnight to inform the police that the appellant was sitting on the stop of Khirki, Press Enclave. The witness reached there with prosecutrix and police constables. He found the appellant sitting at the said stop and from there he was arrested. The witness did not prepare the arrest memo with the help of any independent witness. If the appellant was sitting at the bus stop at midnight some other persons could have been also there.
(x) The defence version taken by the appellant and depositions of Chandan Singh (DW 1) and Surendra Kumar (DW 2) in support thereof, have not only been ignored/brushed aside by the courts below rather no reference has been made to the same.
(xi) The contradictions referred to hereinabove and particularly in respect of the nail marks on her body could not be said only to be minor contradictions which did not go to the root of the matter. Some of the contradictions/embellishments/improvements are of greater magnitude and had serious impact on the case.
(xii) The FSL report dated 6-5-1999 reveal that the bloodstains/semen on the prosecutrix kurta/salwar belonged to the AB blood group though the blood group of the appellant is O (+) and thus, the FSL report does not support the case of the prosecution.
27. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 285/315 taken into consideration at all.
28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.
29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.
31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 286/315 virtues/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.
32. The instant case is required to be decided in the light of the aforesaid settled legal propositions. We have appreciated the evidence on record and reached the conclusions mentioned hereinabove. Even by any stretch of imagination it cannot be held that the prosecutrix was not knowing the appellant prior to the incident. The given facts and circumstances make it crystal clear that if the evidence of the prosecutrix is read and considered in totality of the circumstances along with other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The prosecution has not disclosed the true genesis of the crime. In such a fact situation, the appellant becomes entitled to the benefit of doubt.
33. In view of the above, the appeals succeed and are allowed. The judgment and order dated 25-3-2009 passed by the High Court of Delhi in Criminal Appeal No. 53 of 2000 and that of the trial court dated 7-12-1999 are hereby set aside. The appellant is on bail, his bail bond stands discharged."
208. Now coming to the Call Detail Records of the mobile numbers used by the appellants of the aforesaid appeals/ prosecutrix/sister of the prosecutrix/father of the prosecutrix, we find that records have been produced both by the prosecution as also by the defence apart from PW-14, Alok Kumar posted at the District Information Unit, Nalanda at the residence of the Superintendent of Police, Nalanda having also produced analysis report (Exhibit-7) with regard to the mobile numbers in Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 287/315 question, and certificates having also been produced under Section 65B of the Act, 1872 by the employees/nodal officers of Vodaphone mobile company, Idea mobile company, Airtel mobile company and Reliance mobile company. From a bare perusal of the said records, the following findings emerge:-
(i) The analysis report furnished by PW-14 with regard to the mobile phone of Sulekha Devi bearing no.
9162857459 shows that on 06.02.2016 after 15:14:53 hours, the said mobile was found to be outside the tower location of Biharsharif. At 16:50:02 hours, the said mobile was found at Bakhtiyarpur. After 18:13:36 hours of 06.02.2016, no call was either made or received over the said phone, hence CDR cannot specify the location of mobile no. 9162857459 belonging to Sulekha.
(ii) In paragraph no. 13 of his cross-examination, PW-14 has stated that the mobile number of Tusi Devi is 8651305263 and 8298800821 and the tower location of the said mobiles were not found to be either within the district Nalanda or district Nawada on 06.02.2016. Similarly, on 06.02.2016, the tower location of Mobile no. 9162857459 belonging to Sulekha Devi, after 15:14:53 hours, was not found within the tower location of District-Nawada or District-Nalanda.
(iii) In paragraph no. 14 of his cross-examination, PW-14 has stated that on 06.02.2016, no call was made in between mobile nos. 9162246321 (Rajballabh Yadav) and 9162857459 (Sulekha Devi).
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 288/315
(iv) In paragraph no. 18 of his cross-examination, PW-14 has stated that on 06.02.2016, a call lasting 26 seconds was made from mobile number 8651305263 (Tusi Devi) to mobile number 9162246321 (Rajballabh Yadav), which he has mentioned at page no. 10 of his analysis report. He has further stated that from the same former mobile number, another call was made to the latter mobile number, which lasted approximately 21 seconds.
(v) In paragraph no. 23 of his cross-examination, PW-14 has stated that the location of mobile no. 8651305263 (Tusi Devi) on 06.02.2016 and 07.02.2016, was found to be at Madhopur, Bakhtiyarpur, District-Patna. Similarly, location of mobile no. 8298800821 (Tusi Devi) was also found at Bakhtiyarpur on 06.2.2016. In the CDR, location of both the mobile numbers is shown at Bakhtiyarpur and both the mobile numbers belong to Tusi Devi.
(vi) In paragraph no. 24 of his cross-examination, PW-14 has stated that mobile no. 9162857459, belonging to Sulekha Devi was showing its location during all the calls made on 06.02.2016, either at Nalanda or Bakhtiyarpur and the last call from this mobile number was made at 18:13:36 hours.
(vii) In paragraph no. 26 of his cross-examination, PW-14 has stated that as per his analysis report, mobile no. 9162246321 belonging to Rajballabh Yadav was active, however the direction from Pathra English tower in which it was active was not mentioned in his analysis report.
(viii) In paragraph no. 29 of his cross-examination, PW- 14 has stated that between 01.2.2016 and 06.02.2016, a Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 289/315 total of 55 calls were made from mobile no. 9162857459 (Sulekha Devi) to mobile no. 9801265522. Similarly, in- between 07.02.2016 and 09.02.2016, 9 calls were exchanged between the aforesaid mobile numbers. Furthermore, from the mobile number of Sulekha Devi, a total of 13 calls were made in-between 01.02.2016 and 09.02.2016 to another mobile no. i.e., 9835274090. Additionally, 14 calls were recorded in-between 01.02.2016 and 09.02.2016 between Sulekha Devi's mobile no. and mobile no. 9835071905.
(ix) The C.D.R. (call detail records) shows that the aforesaid Appellants No. 2, 3 and 6 had not made any phone calls to the appellant of the first case on 06.02.2016.
(x) Now coming to the call detail records of mobile phone of PW-1 and PW-4, it is revealed that before 09.02.2016, no call had been made in-between either of them and they had talked only on 09.02.2016 and on that day the first call was made by PW-4 to PW-1 at 06:52 AM and the second call was made at 10:21 AM whereas, it is claimed by PW-4 that they had reached the police station at 10:00 AM, meaning thereby that PW-1 had not disclosed about the incident to PW-4 on 07.02.2016.
(xi) The call detail records of the mobile number 9801848312 (registered in the name of one Arun Kumar, husband of Sulekha Devi) shows that there was no conversation in between the said mobile number owned by Sulekha Devi and the appellant of the 1st case on the intervening night of 6/7.02.2016 and moreover, the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 290/315 mobile location of the said appellant was also not found within the district of Nalanda and Nawada.
209. The aforesaid analysis of the Call Detail Records of the mobile numbers used by the appellants of the aforesaid appeals/ prosecutrix/sister of the prosecutrix/father of the prosecutrix etc. would demonstrate that no call was made from the mobile of Sulekha Devi to the mobile of Rajballabh Yadav on 06.02.2016 and the location of the mobile of Suleka Devi was found to be outside the range of tower located at Biharsharif but not within the district of Nalanda and Nawada. Further no call was made from the mobile phone of Sulekha Devi on 06.02.2016 after 18:13:36 hours. As far as mobile phones (two in number) of Tusi Devi are concerned, the tower location of the said mobile phones were not found to be either within the district of Nalanda or Nawada on 06.02.2016 and the location of the said mobile phones was found to be at Madhopur, Bakhtiyarpur, District- Patna. It has also transpired that no calls were made by the appellants no. 2, 3 and 6 to the appellant of the first case on 06.02.2016. It is evident from paragraph no. 26 of the cross- examination of PW-14 that though mobile no. 9162246321, belonging to the appellant of the first case was found to be active, however the analysis report of PW-14 does not disclose the directional data from Pathra English tower with which the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 291/315 mobile number was connected. In fact, there is only one tower of Bharti Airtel company located at village Pathra English which is apparent from the CDR detail (Exhibit-28) and the same covers all the locations claimed to have been visited by the appellant of the first case starting from 08:30 p.m. on 6.2.2016 upto 05:00 a.m. of 07.02.2016. As per CDR, driver Bishnu was present at Pathra English right from 08:18 p.m. on 06.02.2016 till he left Pathra English on 07.02.2016 at 04:00 a.m., whereafter also his mobile phone has been found to be within the range of the tower located at Nalanda district. The CDR of the two mobile phones mentioned in the fardbeyan i.e. 7856940431 being used by PW-1, although registered in the name of Tunni Devi and the other bearing 9798206864, being used by PW-4 would show that no conversation had taken place in between the said two numbers on 06.02.2016, 07.02.2016 and 08.02.2016, however, conversation took place on 09.02.2016 at 06:52:07 hours, 10:21:08 hours and 19:19:18 hours. Exhibit J and J-1 would show that several calls were received on the mobile being used by PW-1 and few outgoing calls had also been made from the said mobile in between 06th to 08th February, 2016. Exhibit-K shows the location of the mobile phone of PW-4 to be at Sultanpur, P.S.-Rahui, Nalanda on Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 292/315 09.02.2016 at 06:52:07 hrs., at Biharsharif on 09.02.2016 at 10:21:08 hrs. and at Sultanpur, P.S. Rahui, Nalanda on 09.02.2016 at 19:19:18 hrs.. Thus, a bare perusal of the aforesaid analysis of the CDR makes the sequence of events as set up by the prosecution doubtful.
210. At this juncture, we would like to point out that the requisite certificates under Section 65-B (4) of the Act, 1872 with regard to the CDR and CAF of the mobile numbers in question have been produced by the employees/nodal officers of the respective mobile companies, who are also witness in the present case. Thus, the admissibility of the electronic record in question is not an issue in the present case. In this regard reference be had to a judgment rendered by the learned Three Judges' Bench of the Hon'ble Apex Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors., reported in (2020) 7 SCC 1. We would also put a word of caution to the effect that though C.D.R. data can be an important and effective piece of evidence which may facilitate the Court in ascertaining the location of the accused involved in commission of offence as also the location of the complainant, however C.D.R. data can only be used as a supportive and corroborative piece of evidence. As far as the present case is concerned, the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 293/315 C.D.R., as aforesaid coupled with the evidence on record depict grave lacunas in the case as set up by the prosecution.
211. Last but not the least, we would also advert to the plea of alibi raised by the appellant of the first case, in support whereof the defence has produced several witnesses i.e. DW-1 (Umed Singh Yadav), Manager of TMC Guest House, DW-2 (Vinay Kumar Ranjan), brother-in-law of the appellant of the first case, DW-4 (Kailash Prasad Yadav) Ward Councillor, DW-5 (Ram Ratan Singh), DW-6 (Prashant Rai), DW-11 (Bhante Jambudeep @ Lalan Manjhi) and DW-12 (Dinesh Kumar Akela). A collective reading of the evidence of the said defence witnesses would show that the appellant of the first case had arrived at the TMC Guest House on 06.02.2016 in between 10:45-11:00 p.m. and had left around 01:00 a.m., whereupon he had arrived at Prajatantra Chowk at 01:30 a.m. of 07.02.2016 where he had supervised the cleaning of drains, had stayed there for 1-1½ half hours and had then reached Gola Road, Barahgania Pyne, Nawada for the purposes of supervising cleaning of drains at about 03:00 a.m. in the morning of 07.02.2016 and then he had reached Harishchandra Stadium in the morning of 07.02.2016 at about 3:30-4:00 a.m., where he had stayed for 40-45 minutes, whereafter he had returned to his house at Pathra English. Thus, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 294/315 the appellant of the first case is not stated to be at his home, i.e. at the alleged place of occurrence at the time when the prosecutrix has alleged commission of rape by him with her. At this juncture we may advert to the well settled law that the defence witnesses are entitled to equal respect and treatment as that of the prosecution and the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Reference in this connection be had to a judgment rendered by the Hon'ble Apex Court in the case of Munshi Prasad & Ors. vs. The State of Bihar, reported in (2002) 1 SCC 351.
212. We shall now advert to the contentions raised by the Ld. Amicus Curiae, Ms. Anukriti Jaipuriyar, Advocate, appearing for the prosecutrix. The first submission made by the learned Amicus Curie appearing for the prosecutrix is that such cases as the present one should be dealt with sensitivity and the evidence of a prosecutrix need not be tested with the same amount of suspicion as that of an accomplice as also minor contradictions should be ignored. We are of the view that there is no quarrel Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 295/315 with the proposition that the cases like the present one should be dealt with sensitivity, however we find from the ocular evidence on record, especially that of PW-1, PW-2, PW-4, PW-5, PW-7 and PW-15 as also from perusal of the written report of the prosecutrix and the statement of the witnesses recorded under Section 164 Cr.P.C. that there are several significant contradictions, inconsistencies and embellishments on crucial details, which also pertains to the core element of the alleged crime and the same not only undermines the reliability of the evidence on record but also manifest that the witnesses are not truthful and the evidence is unreliable, thus the said contradictions are not so minor so as to be ignored, hence no conviction can be based on the evidence of such witnesses.
213. The learned Amicus Curiae has next submitted that non- presence of external or internal injuries on the body of the prosecutrix cannot lead to an inference that the present case is a case of consent since no such question was put to the prosecutrix in cross-examination. We find that the issue in the present case is as to whether rape was committed with the prosecutrix or not, however regarding the said issue, upon considering the evidence on record, we have not found any evidence which may show that ingredients of rape as defined Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 296/315 under Section 375 of the IPC are present so as to demonstrate that the appellant of the first case had committed rape with the prosecutrix.
214. The learned Amicus Curiae has next argued that the natural conduct of the prosecutrix and the chain of events goes to establish that the prosecutrix is a sterling witness. This aspect of the matter has already been dealt with at length in the preceding paragraphs and we have come to a finding that the conduct of the prosecutrix leaves a mark of doubt to treat her testimony as so natural and truthful so as to inspire confidence and moreover, all the intervening circumstances as also the aforesaid material contradictions in the statement of the prosecutrix would show that she is not a reliable witness and does not fall within the ambit of a sterling witness, hence her testimony cannot be relied upon for the purposes of adjudging the guilt of the appellants.
215. Yet another argument raised by the Amicus Curiae is that sole testimony of the prosecutrix requires no corroboration and the same is enough to prove the guilt of the accused beyond all reasonable doubt. In this regard, it would suffice to state that though there is no quarrel that conviction can definitely be based on the sole testimony of the prosecutrix, however only if Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 297/315 the evidence of the prosecutrix is trustworthy, unblemished, credible and that of sterling quality and as far as the present case is concerned, we have already come to a finding that the evidence of the prosecutrix is not that of a sterling quality and is not such upon which reliance can be placed.
216. It has next been argued that the testimony of the prosecutrix stands on a higher pedestal than the injured witness, a proposition to which also there cannot be any quarrel, however the caveat is that the court is required to be extremely careful while examining the sole testimony of the prosecutrix and in case the same inspires confidence in the mind of the Court, the accused can be convicted on the basis of sole testimony of the prosecutrix but if the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and negate the case set up by the prosecutrix, the Court is not required to act on the solitary evidence of the prosecutrix.
217. The learned Amicus Curiae has contended that the delay in lodging FIR has stood explained but we find from the materials on record that though the occurrence had taken place in the intervening night of 06/07.02.2016, however the FIR was lodged belatedly only on 09.02.20216 and moreover, the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 298/315 prosecutrix has stated in her evidence that she had narrated the incident to her elder sister (PW-1) on 07.02.2016, whereafter PW-1 had informed the father on 07.02.2016 itself that the prosecutrix was medically ill but he was not informed about the commission of rape with the prosecutrix since their mother was ill, after which the father of the prosecutrix i.e. PW-4 had reached Biharsharif in the evening of 08.02.2016, whereupon the entire incident was narrated to him and then on the next day i.e. 09.02.2016 at about 10:00 a.m., the prosecutrix along with PW-1 and their father i.e. PW-4 had left their residence to lodge FIR, nonetheless on the contrary, Exhibit-J/2 read with Exhibit- K shows that PW-1 did not make any call to her father either on 06th or 07th or 08th of February, 2016 and for the first time PW-4 had called PW-1 on 09.02.2016 at 06:52:07 hrs. and again at 10:21:08 hrs.. This fact also stands corroborated from the evidence of PW-15 (Investigating Officer), especially from paragraph no. 98 of her deposition. Thus, these circumstances make the entire occurrence in question highly improbable, raises a question mark regarding the bonafide of the prosecutrix, her sisters and her father and negate the case set up by the prosecution.
218. The learned Amicus Curiae has tried to impress upon us Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 299/315 that the provisional matric certificate submitted by the prosecutrix by way of Exhibit-3 (with objection), shows date of birth of the prosecutrix to be 4.1.2000, hence she was definitely a minor as on the date of commission of rape by the appellant of the first case with her. It has been submitted that since the said provisional matriculation certificate is a public document, the same is not required to be proved like any other document. The learned Amicus Curiae has pointed out that even the Medical Board has opined, in its report dated 17.02.2016 that the age of the prosecutrix is in-between 16-17 years and has further relied upon the evidence of PW-4, PW-8, PW-9, PW-10, PW-11 and PW-13. In this regard, it would suffice to state that upon a detailed analysis and considering the law laid down by the Hon'ble Apex Court in the case of R.V.E. Venkatachala Gounder (supra), to the effect that in case objection is raised with regard to any document being exhibited by the prosecution then the same is evidently directed towards the irregularity and insufficiency of the mode and manner of proving the said document, thus the prosecution is required to cure its defect, we have come to a finding that in the present case the prosecution ought to have proved Exhibit-3 in the manner as postulated under Sections 61 to 73 of the Act, 1872, however the same Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 300/315 having not been done, Exhibit-3 cannot be held to be a due proof of its contents, consequently it cannot be considered as a proof of age of the prosecutrix. As regards the report of the Medical Board dated 17.02.2016, opining therein that the age of the prosecutrix is in between 16-17 years, we find that no Radiologist was a part of the Medical Board, hence neither radiological test was conducted nor expert opinion of the Radiologist was sought for, which is not only important but also conclusive in determining the age of the prosecutrix on the basis of ossification test and moreover, there is no proof on record to show that the set of x-ray plates relied upon by the Medical Board pertains to the prosecutrix, apart from the fact that the finding of the Dental Surgeon i.e. PW-10 is also contrary to the well settled principles of medical science. The Hon'ble Apex Court in the case of Vinod Katara (supra) has held that bone ossification test is not an exact science and is not conclusive for age determination because it does not reveal the exact age of the person but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test. Hence, applying the said principle to the present case, if two years are added to either 16 or 17, the prosecutrix would definitely be a major. We have already gone through the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 301/315 evidence of the members of the Medical Board i.e. PW-8, PW-9, PW-10, PW-11, PW-12 and PW-13 as also the report of the Medical Board dated 17.02.2016 and have come to a finding that the opinion recorded in the report of the Medical Board dated 17.02.2016 cannot be said to be based upon the prescribed standard medical procedure for age determination, hence the said report dated 17.02.2016 is not reliable, therefore, the opinion of the Medical Board, as aforesaid, cannot be said to be a conclusive proof of the age of the prosecutrix.
219. As far as the ocular evidence of PW-4 (father of the prosecutrix) with regard to the age of the prosecutrix is concerned, we have already discussed his evidence in the preceding paragraphs and have found that he has admitted in paragraph no. 8 of his cross-examination that he cannot say as to in which year he had got his respective daughters enrolled at the Primary School at Sultanpur. PW-4 has also stated in his cross- examination that he had not got the birth of his children (including the prosecutrix) registered and he had also not given any documentary proof of their age at the time of their enrolment at the school in question, however he had noted the date of birth of all his children in separate diaries. We find from the evidence on record that PW-4 has withheld such an Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 302/315 important evidence pertaining to the age of the prosecutrix inasmuch as he could have very well produced the aforesaid diaries in which he had noted the date of birth of his children, which leads us to assume that such evidence, if produced would have been unfavourable to the prosecution. Reference be had to Section 114 Illustration (g) of the Act, 1872 which allows the Court to draw an adverse inference against a party for non- production of material evidence or witnesses within their control. Thus the prosecutrix/ the prosecution has failed to bring on record any admissible document regarding age of the prosecutrix as also has failed to prove the age of the prosecutrix, more so to the effect that she was a minor on the date of occurrence, even by way of adducing ocular evidence, hence we find that there is no proof that the prosecutrix was below the age of 18 years as on the date of alleged occurrence. Therefore, the provisions of the POCSO Act, 2012 shall not apply in the present case.
220. The learned Amicus Curiae has next contended that the FSL report and the medical examination report of the prosecutrix is irrelevant in the present case since the prosecutrix had washed her clothes twice with soap and water and moreover, though the incident had taken place in the night of Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 303/315 06/07.02.2016, the medical examination was held only on 17.02.2016, i.e. after a lapse of about 11 days but still the medical report dated 17.02.2016 does not rule out the possibility of rape. Regarding this aspect of the matter, we find that the earliest/first medical examination of the prosecutrix was done by Dr. Krishna on 09.02.2016 and the evidence on record would bear it out that the said medical report of Dr. Krishna states that there is no evidence of "forceful sexual intercourse" as also the said doctor has found that the "victim is used to sex". However, the said report of Dr. Krishna dated 9.2.2016 has been withheld conspicuously by the prosecution. It is also apparent from the report of the Medical Board dated 17.02.2016 (Exhibit-4), that the Medical Board, upon examination of the prosecutrix, found her secondary sexual characters to be well developed, no injury had occurred on her body, no injury was found on the private parts of her body, vagina admitted two fingers easily, hymen is old ruptured and no injury was present inside the vagina. Thus, not only the earliest medical report of Dr. Krishna dated 09.02.2016 but also the medical report dated 17.02.2016 assumes significance. At this juncture, we may observe that it is a well settled law that where the medical evidence rules out the possibility of the ocular evidence being true and does not Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 304/315 support the case of the prosecution relating to the offence of rape, not only the ocular evidence may be disbelieved but also the sole testimony of the prosecutrix ought to be discarded.
221. We shall now proceed to examine the impugned judgment of conviction and sentence passed by the learned Trial Court. A conscientious examination of the impugned judgment, in the light of the totality of facts and circumstances as also the evidence on record, as indicated hereinabove, reveals that the learned Trial Court has convicted the aforesaid appellants merely on conjectures and surmises and it has come to a conclusion based on assumptions and not legally acceptable evidence inasmuch as such assumptions are not corroborated by any reliable evidence and moreover, several material aspects of the case have either been summarily disregarded or addressed in a sweeping generalisation. The finding of the learned Trial Court of there being no inconsistency in the prosecution case is also negated from the evidence discussed herein above in the preceding paragraphs which also renders the testimony of the prosecutrix to be wholly unreliable resulting in her not falling within the category of sterling witness, thus the learned Trial Court has erred by treating the testimony of prosecutrix to be reliable and unimpeachable as also considering the same to be Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 305/315 the sole basis for conviction of the appellants, though the contradictions and inconsistencies present in the present case pertains to the core element of the alleged crime, which not only undermines the reliability of the witnesses but also shows that they are not truthful as also the evidence is unreliable upon which no conviction can be based.
222. The learned Trial Court has also erred by holding that both the place of occurrence and the accused i.e. Rajballabh Yadav have stood identified by the prosecutrix and the same has also stood corroborated by the evidence of PW-5, PW-6, PW-7 and PW-15, inasmuch as the evidence on record would show that neither the mode and manner nor the place of occurrence has stood proved and moreover, the manner in which identification of the appellant of the first case is stated to have been done by the prosecutrix is highly improbable. Much reliance has been placed by the learned Trial Court on the call detail records, especially with regard to the mobile number of the appellant of the first case being within the range of mobile tower of Pathra English at the time of commission of the crime, however on the contrary PW-14 has specifically deposed that although the mobile number of the appellant of the first case was found to be active but his analysis report did not disclose Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 306/315 the directional data from Pathra English tower with which the said mobile number was connected, more so for the reason that there is only one mobile tower in the entire village of Pathra English. The learned Trial Court failed to consider the well settled law that CDR data can only be used as a supportive and corroborative piece of evidence and the same is required to be corroborated with other material evidence on record in order to come to a definitive and conclusive finding but in the present case the CDR/ analysis report coupled with the evidence on record depicts grave lacunas in the case as set up by the prosecution.
223. The learned Trial Court has erroneously placed reliance on Exhibit-3 i.e. the provisional marks sheet of the prosecutrix issued by the Bihar School Examination Board for coming to a finding that her age is below 18 years, inasmuch as it failed to consider that the said provisional marks sheet was though marked as Exhibit-3 with objection but the same was never proved by the prosecution during the course of Trial and further there is no medical evidence on record to suggest that the prosecutrix is below the age of 18 years, hence the learned Trial Court erred by not considering that the provisions of the POCSO Act would not apply in the present case, consequently Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 307/315 the learned Trial Court's observation that the appellants were involved in immoral trafficking of a minor as part of their criminal conspiracy also falls flat to the ground and does not stand substantiated in the present case.
224. The learned Trial Court has also erred by coming to a finding that since there was lapse of 11 days in conduct of the medical examination of the prosecutrix, which was conducted on 17.02.2016, material evidence had been lost resulting in the findings of the medical examination of the victim being affected. The evidence on record would show that the earliest/ first medical examination of the prosecutrix was done by Dr. Krishna on 09.02.2016 and the medical report of Dr. Krishna states that there is no evidence of "forceful sexual intercourse"
as also the said doctor has found that the "victim is used to sex".
As far as the report of Medical Board dated 17.02.2016 (Exhibit-4) is concerned, the Medical Board, upon examination of the prosecutrix, found that neither injury had occurred on the body nor injury was found on the private parts of her body, vagina admitted two fingers easily, hymen is old ruptured and no injury is present inside the vagina. Thus, not only the earliest medical report of Dr. Krishna dated 09.02.2016 but also the medical report dated 17.02.2016 assumes significance. The Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 308/315 learned Trial Court has erred by not relying on the aforesaid report of Dr. Krishna dated 09.02.2016 on an atrocious pretext that no conclusion can be drawn from the said report. Thus, the medical evidence definitely rules out the possibility of the ocular evidence being true and does not support the case of the prosecution relating to the offence of rape.
225. As regards the plea of alibi taken by the appellant of the first case to have been found to be untrue by the learned Trial Court, we find from the evidence led by the defence that a cast iron case of plea of alibi has been put forth by the defence. Lastly, the learned Trial Court has tried to dispute the CDR and CAF of the two mobile phones being used by PW-1 and PW-4, as produced by DW-14, however it is apparent from the evidence of DW-14 that he has not only proved the CDR and CAF of the said two mobile phones running into 6 pages and 4 pages respectively but has also stated in his evidence that the computer in question is being operated under his supervision and he had obtained the CDR from Mumbai Server by getting it to his company's server at Patna, whereafter he had taken out the print out of the CDR of the said two mobile phones, which he had duly signed and the same also bears the stamp of his mobile company, which have been marked as Exhibit-J series Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 309/315 and K series. In fact DW-14 has also stated in his evidence that he has filed the requisite certificate under Section 65-B of the Indian Evidence Act in the Court which has been typed by him, bears his signature, bears the seal of the company and was prepared in the office of his company, which has been marked as Exhibit-N. Thus the learned Trial Court had no reason to not rely upon the said CDR. Therefore, taking into account an overall perspective of the entire case, we find that the learned Trial Court has committed a gross error in holding that the evidence produced by the prosecution goes to prove beyond all reasonable doubt the commission of offence by the aforesaid appellants.
226. Thus, based on an encapsulation of the above mentioned facts and circumstances of the case, taking into account an overall perspective of the entire case, as discussed herein above, having perused the entire evidence on record, both ocular and documentary as also medical evidence, we find that the prosecution has failed to either prove that the prosecutrix was below the age of 18 years or to establish the foundational facts. We have already come to a finding that the prosecution/ the prosecutrix has failed to prove the age of the prosecutrix, more so to the effect that she was a minor on the date of occurrence, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 310/315 even by way of adducing ocular/ documentary evidence, hence we find that there is no proof that the prosecutrix was below the age of 18 years as on the date of occurrence, especially considering the fact that if at all the medical report dated 17.02.2016, prepared by the medical Board after examining the prosecutrix, opining the age of the prosecutrix to be in between 16 to 17 years is considered to be of any worth, then applying the principle laid down by the Hon'ble Apex Court in the case of Vinod Katara (supra), if two years are added to either 16 or 17, the prosecutrix would definitely be a major. Therefore, we are of the view that the provisions of the POCSO Act, 2012 shall not be applicable in the present case, hence the conviction of the appellants of the first, second and third case recorded by the learned Trial Court under the provisions of the Protection of Children from Sexual Offences Act, 2012, as aforesaid, is not sustainable and requires interference.
227. We have also analysed the written report/statements made by the witnesses, including the prosecutrix under Section 164 Cr.P.C. and the deposition of witnesses, especially PW-1 to PW- 4 and find that the same are full of inconsistencies, contradictions and embellishments, which all create a doubt about the credibility of the case as set out by the prosecution. It Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 311/315 also transpires from the evidence on record that the mode and manner of incident as also happening of the occurrence in question, itself is doubtful and apparently there are material contradictions in between the version of the prosecutrix as stated in the written report vis-a-vis her statement made under Section 164 Cr.P.C. and her testimony before the learned Trial Court. The conduct of the prosecutrix, her sisters and father coupled with other circumstances definitely shows that the evidence of the prosecutrix is untrustworthy and lacks credibility, hence the prosecutrix cannot be said to be a sterling witness, thus no reliance can be placed upon the same. A threadbare analysis of the evidence of the prosecution witnesses depicts presence of significant contradictions on crucial details and such contradictions and inconsistencies pertain to the core elements of the alleged crime which not only undermines their reliability but also manifests that the witnesses are not truthful as also the evidence is unreliable, hence no conviction can be based on the evidence of such witnesses.
228. Therefore, it is discernible that not only the mode, manner and place of occurrence have not stood proved conclusively but the prosecutrix can also not be said to be a truthful and a sterling witness, hence her sole testimony cannot be relied upon for the Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 312/315 purposes of sustaining the conviction of the appellants. The medical evidence on record rules out that the prosecutrix had any recent sexual intercourse, however on the contrary demonstrates that she is used to sexual intercourse, neither injury had occurred on her body nor injury was found on the private parts of her body, vagina admitted two fingers easily, hymen is old ruptured and no injury is present inside the vagina. Thus, the evidence placed on record, as aforesaid, especially the medical evidence does not support the commission of rape. We also find that the conduct of the prosecutrix, her sisters and father as also the entire surrounding circumstances, as discussed herein above in the preceding paragraphs are implausible, the evidence of the prosecutrix is unsupported by any medical evidence apart from there being grave contradictions and inconsistencies in the statement of the prosecutrix/ prosecution witnesses made at different points of time i.e. in the written report/statement made under Section 164 Cr.P.C./ deposition, hence the case set up by the prosecution appears to be highly improbable and irresolute. We are thus of the considered view that the prosecution has failed to prove beyond all reasonable doubt that an offence of rape is made out in the present case, more so as the ingredients of Rape as defined under Section 375 Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 313/315 of the IPC are not met in the present case. Consequently, for the reasons mentioned in the forgoing paragraphs, the offence of rape does not stand proved. Therefore, conviction of the aforesaid appellants under the provisions of the Indian Penal Code, 1860, as aforesaid, by the learned Trial Court is also not sustainable and requires interference.
229. Having already held the findings of conviction recorded by the learned Trial Court under the provisions of the POCSO Act, 2012 and the Indian Penal Code, 1860 to be not sustainable, requiring interference, consequently we find that the conviction of the appellants of the second, third, fourth, fifth and sixth case under the provisions of the Immoral Traffic (Prevention) Act, 1956 lacks any basis and is also not sustainable.
230. On a collective appreciation of the evidence led by the prosecution, considering the facts and circumstances of the case, as discussed herein above and for the foregoing reasons, we are of the considered view that there are compelling reasons in the present case which necessitates that the appellants of the aforesaid appeals be given benefit of doubt. Accordingly, the findings of conviction recorded by the learned Trial Court, in our opinion, is not sustainable and requires interference, Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 314/315 therefore the judgment of conviction dated 15.12.2018 and order of sentence dated 21.12.2018, passed by the learned Special Judge (Elected Member of Parliament, Member of Legislative Assembly and Member of Legislative Council), Bihar, Patna in Special Case No. 145 of 2018 [arising out of Mahila (Nalanda) P.S. Case No. 15 of 2016], are set aside. Accordingly, the appellants of the aforesaid appeals are acquitted of the charges levelled against them.
231. The appellant of the first case, i.e. Rajballabh Prasad @ Rajballabh Yadav (in Criminal Appeal (DB) No. 224 of 2019), the appellant of the second case, i.e. Sulekha Devi (in Criminal Appeal (DB) No. 165 of 2019) and the appellant of the third case, i.e. Radha Devi (in Criminal Appeal (DB) No. 200 of 2019) who are in custody, are directed to be released from jail, forthwith unless required in any other case. As far as the appellant of the fourth case, i.e. Sandeep Suman @ Pushpanjay (in Criminal Appeal (DB) No. 218 of 2019) is concerned, he is already on bail, hence he is discharged from the liabilities of his bail bonds. Now coming to the appellant of the fifth case, i.e. Tusi Devi (in Criminal Appeal (DB) No. 226 of 2019) and the appellant of the sixth case, i.e. Chhoti Devi @ Amrita (in Criminal Appeal (DB) No. 243 of 2019), we have been Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025 315/315 informed that they have already been released from Jail upon completion of their sentence, after grant of remission.
232. Accordingly, the aforesaid appeals, i.e. Criminal Appeal (DB) No. 224 of 2019, Criminal Appeal (DB) No. 165 of 2019, Criminal Appeal (DB) No. 200 of 2019, Criminal Appeal (DB) No. 218 of 2019, Criminal Appeal (DB) No. 226 of 2019 and Criminal Appeal (DB) No. 243 of 2019 stand allowed.
233. Before parting with these appeals, we place on record our appreciation for the learned Amicus Curiae, Ms. Anukriti Jaipuriyar, Advocate, in extending her able and invaluable assistance to the Court, appointed to espouse the cause of the prosecutrix.
(Mohit Kumar Shah, J) I agree.
(Harish Kumar, J) (Harish Kumar, J) S.Sb/-
AFR/NAFR AFR CAV DATE 07.05.2025 Uploading Date 14.08.2025 Transmission Date 14.08.2025